Standards of Practice for Mediators, Illinois

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DEFINITION

Mediation is a voluntary procedure whereby an independent and impartial third party or parties promote and facilitate the resolution of a dispute between parties. Mediation is based on full disclosure of all facts related to the disputes so that a fair and suitable agreement can be achieved by the disputants. The end product is a written memorandum of agreement, detailing all the issues involved and the accord of the parties. In matters of divorce mediation, the agreement may encompass the division of marital property, spousal and child support, and child custody and parental access.

I COMPETENCE

Mediators shall maintain high standards of competence. Recognizing the boundaries of their competence and the limitations of their techniques, they only provide services or use techniques for which they are qualified by training and experience, using consultation from other professionals, as appropriate. They maintain knowledge of current professional information related to the services they render. Mediators accurately represent their competence, education, training, and experience.

A. Formal Education.Mediators shall hold either a bachelor’s degree; a J.D. degree; a master’s degree; or equivalent training or experience in mental health or related disciplines. Mediators shall be members in good standing in the professional organizations of their disciplines.

B. Training. Mediators shall have undergone at least forty hours of training specifically in mediation, led by qualified mediators and/or by a recognized training organization before representing themselves to the public as mediators. Qualified divorce mediators shall have at least a basic awareness of applicable family law and training in the divorce process, conflict management, family systems and therapy, child development, and the effect of divorce upon children.

C. Continuing Education. Mediators shall participate in continuing education and be responsible for ongoing professional growth. Mediators recognize their shared responsibility to join with other mediators and with members of other related professions to promote mutual professional development.

D. Self-Monitoring, Personal Functioning, and Bias. Mediators recognize that their capacity to mediate successfully depends in part on their ability to maintain effective interpersonal relations. They shall refrain from undertaking any mediation in which their personal problems are likely to lead to inadequate professional services of harm to a client; or, if engaged in such activity, when they become aware of their personal problems, they shall suspend, terminate, or limit the scope of their mediation activities or seek competent professional assistance to determine whether they should suspend, terminate, or limit the scope of their mediation activities.

II.
CONFIDENTIALITY

Mediation proceedings and all information obtained from and about the participants through the mediation process shall be treated as confidential unless this requirement is waived by informed consent of both parties. Where there is clear and imminent danger to an individual or to society, the obligation of the mediator to maintain confidentiality will not apply.

A. Safeguards Against Invasion of Privacy. Personal or evaluative information is discussed only for professional purposes and only with persons clearly concerned with the case. Written and oral reports present only information germane to the immediate purposes, and every effort is made to avoid undue invasion of privacy.

B. Public Use of Information. Mediators who present personal information obtained during the course of professional work in writings, lectures, or other public forums need either to obtain adequate prior informed consent or to disguise identifying information of the persons involved.

C. Limits of Confidentiality. While the mediator should in every way possible seek to maintain and to protect the confidentiality of mediation, including agreements with the parties involved that the mediator and the records of the mediation process are not to be subpoenaed in any subsequent litigation, the mediator should also inform the parties involved of the limits of confidentiality. At present, this means in particular that mediation has no statutory protection of its confidentiality and is not recognized as privileged communication by law.

D. Records. Mediators make provisions for maintaining confidentiality in the storage and ultimate disposal of client records.

III.
WELFARE OF THE CLIENT

Mediators respect the integrity and protect the welfare of the families and individuals with whom they work. They make reasonable efforts to ensure that their services are used appropriately. These efforts include fully informing potential clients of the purpose and nature of the mediation process.

A. Conflict of Interest: Employee/Client. Upon recognition of an actual or potential conflict of interest between the client and the mediator’s employing institution, mediators shall clarify the nature and direction of their loyalties and responsibilities and keep all parties informed of their commitments.

B. Conflict of Interest: Dual Relationships. Mediators have the responsibility of monitoring their own needs and values and of acting in accordance with their potentially influential position vis-a-vis clients and children of clients, in order to avoid exploiting the trust and dependency involved in the mediation process to their own ends or gratification. Mediators shall make every effort to avoid dual relationships with clients and/or relationships that might impair their professional judgment or increase the risk of client exploitation. Examples of such dual relationships include but are not limited to sexual intimacies with clients, service to students, supervisors, close friends, or relatives.

C. Fees. Financial arrangements in professional practice are in accord with professional standards that safeguard the best interests of the client and that are clearly understood by the client in advance of billing.

(1)
Fee Arrangements. The mediator should explain the fees for mediation and reach an agreement with the couple for payment at the orientation session A mediator shall not charge a contingency fee or base the fee in any manner on the outcome of the mediation process. A flat fee for the entire mediation may be charged if agreed at the outset. Hourly rates may be established, either at a set rate or on a sliding scale, taking into account the financial means and abilities of the parties.

(2)
Additional Professional Consultation. Clients should be advised at the outset of mediation that other relevant professionals, in addition to attorneys, may have to be employed to assist the mediation process in establishing values, weighing tax consequences of alternative arrangements, and dealing with other technical information.

(3)
Referral Fee. No commission, rebate or other form of remuneration may be given or received for referral of clients for professional services whether by an individual or by an agency.

(4)
Pro Bono. Mediators contribute a portion of their services to work for which they receive little or no financial remuneration.

D. Initial Advice. At the initial orientation session, mediators should at a minimum advise potential clients of the following.

(1)

The issues to be mediated should be delineated from the outset. In divorce mediation, the parties should not begin mediation unless they are agreed that their marriage is to be dissolved and that they are voluntarily submitting all or certain of the disputed issues in connection with child custody visitation, support, or property division for mediation.

(2)
Therapy is not a part of the mediator’s function. Therapists should not conduct mediation when their clients have contracted for therapeutic services.

(3)
Neither law nor therapy shall be practiced in mediation. Attorneys should not conduct mediation when their clients have contracted for legal services. Discussion of legal alternatives that develop during the mediation process shall be discussed by the parties with their respective legal representatives for purposes of review and explanation.

(4)
The parties should each be advised to obtain independent legal counsel to assist and to advise them throughout the mediation.

(5)
The mediation can be suspended or terminated at the request of either party. The mediator shall suspend or terminate the mediation if it appears that the parties are acting in bad faith, if either party appears not to understand the negotiation, if the prospects of achieving a responsible agreement appear unlikely, or if the needs and interest of minor children are not being considered by the parties. In the event of a suspension, the mediator may suggest a referral for outside professional consultation.

(6)
The cost of mediation in terms of hourly rates must be agreed upon (see C, above), as well as the method and responsibility for payment.

(7)
The participants need to be advised both that the mediation process is confidential and also of the limits of confidentiality.

(8)
Participants should be informed that the mediation process requires voluntary full disclosure. Each client in divorce mediation may be expected to submit and exchange with the other a statement of assets and liabilities, income information, and detailed budgets.

IV.
IMPARTIALITY

The role of the mediator is to serve as an impartial third party with responsibility for structuring and monitoring the process of decision making between the parties. Mediators can serve effectively only when all parties to the dispute are confident of the mediator’s impartiality. Mediators shall disclose to both parties any ties, association, or potential biases they may have in working with either party. This includes acknowledgment of any prior relationship with either of the parties to the dispute. Mediators have a duty to disclose at the earliest appropriate time to the parties involved all contacts between the mediator(s) and either party or any other relevant third party, including the clients’ attorney(s). Mediators assume the responsibility for withdrawing from a case if they believe or perceive that there is a clear conflict of interest, or if a bias emerges that interferes with the mediation, regardless of the expressed desires of the parties.

A. Non concurrence. Impartiality is not the same as neutrality in questions of fairness. Although a mediator is the facilitator and not a party to the negotiations, should parties come to an agreement that the mediator finds inherently unfair, the mediator is expected to indicate his or her non concurrence with the decision in writing

B. Role Conflict. In order to avoid actual or potential conflicts of interest, a lawyer-mediator should not represent either party before, during, or after the mediation process. If the mediator is a mental health professional, there should be no professional relationship with the participants in counseling or therapy, before, during, or after the mediation process.


In the event the mediator has represented or counseled one of the parties beforehand, the mediator should not undertake the role of mediator unless the subject matter of the earlier representation or counseling is clearly distinct from the mediation issues and unless both participants, having been advised of the prior representation or counseling, choose for the mediator to proceed, by written waiver of the parties affected or upon appeal and opinion of approval of TMCI’s Ethics Committee.

It is questionable whether mediators should work with either client in a prior or subsequent therapeutic, legal, or other professional relation. Such dual relations should be entered upon, if at all, only with sensitivity to possible conflicts of interest involved wand with proper advisement to clients regarding such potential conflicts, by written waiver of the parties affected, or upon appeal and opinion of approval of TMCI’s Ethics Committee.

C. Best Interests of the Children. While the mediator has a duty to be impartial, the mediator also has a responsibility to promote the best interests of the children and other persons who are unable to give voluntary, informed consent. Mediators take special care to protect these persons’ best interests. The mediator has a duty to assist parents to examine the separate and individual needs of their children, to consider those needs apart from their own desires for any particular formula for sharing their children, which might be motivated by factors involved in the relationship between the parents and not directly related to the best interests of their children. If the mediator believes that any proposed agreement between the parties does not protect the best interests of the children, the mediator has a duty to inform the couple of his or her belief and its basis.

V.
PROFESSIONAL RELATIONSHIPS

Mediators shall acknowledge and respect the needs, special competencies, and obligations of their colleagues in mediation and other professions.

A. Intra professional Relations. Mediators acknowledge their limits and respect the areas of competence of related professional. They encourage the use of professional, technical, and administrative resources that serve the best interest of clients. A mediator shall not enter any dispute that is being mediated by another mediator without a clear understanding that the first relationship has been terminated. When co-mediating, each mediator has a responsibility to keep the other mediator informed of developments essential to an effective collaborative effort. While present with clients, the mediator should avoid direct criticism of the co-mediator.

B. Professional Decorum. Mediators, whether functioning independently or as part of an organization, shall act professionally and with proper decorum at all times. When mediators function as employees of organizations providing mediation services or as independent mediators serving clients in an organization context, mediators seek to support the integrity, reputation, and proprietary rights of the host organization. When it is judged necessary in a client’s interest to question an individual’s or an organization’s programs or policies, mediators attempt to effect change by constructive action before disclosing confidential information acquired in their professional roles.

VI.
INFORMED DECISIONS and FAIR AGREEMENTS

The mediator has a duty to ensure that clients make informed decisions. The mediator should ensure that the parties have been advised to obtain legal counsel and a sufficient understanding of relevant statutory and case law, as well as local judicial traditions, to make an informed consent on the issue involved. In addition, the mediator should ensure that each of the participants has and understanding of, as well as a reasonable opportunity to weigh, the application of appropriate legal information to his or her situation before reaching an agreement. The mediator has a duty to ensure that the understanding of each of the parties with respect to the relevant information is adequate to allow balanced negotiation. When necessary, the mediator shall refer the parties to experts for consultation and/or evaluation. The mediator shall ensure that there is full financial disclosure and development of relevant factual information in the mediation process.

A. Fair Agreements. While mediators must be impartial between participants, they must not be neutral toward fairness. The objective of family mediation is not a settlement at any cost; rather, it is the achievement of a fair and reasonable agreement. While there can be no constant definition of “fair and reasonable,” it is essential that mediators dissociate themselves from agreements that they perceive to be so far outside the parameters of fairness (as established by case precedent, legal requirements, and learned common sense) that they do not believe them to be fair and reasonable in such an event, mediators should withdraw from mediation and terminate the process.

B. Understanding Decisions. The mediator should ensure that each person understands the implications and the ramifications of the options available. In this regard, the mediator should attempt to assist each person in understanding the interplay of his or her own emotions with the decision making process during the mediation.

C. Non coercive Negotiations. The mediator has a duty to ensure a balanced dialogue and must attempt to defuse any manipulative or intimidating negotiating techniques utilized by either of the parties. If the mediator finds that it is not possible to eliminate such bargaining techniques from the process, he or she should not permit the mediation to proceed.

D. Independent Legal Counsel. The mediator has a duty to advise the mediation participants to obtain legal counsel and advice prior to reaching an agreement. A referral for legal advice should be made before the decision-making process and not after the participants have already reached a full accord to which they may have made an emotional commitment. Mediators, including attorney-mediators, shall not advise either party as to their legal rights or responsibilities so as to direct the parties’ decision on an issue. Each party must be referred to independent legal counsel for that advice. A single attorney to advise the participants as to the law in the course of a mediation is not a substitute for independent legal counsel. Mediators should avoid any ongoing referral relationship with an attorney that hampers the independence of the attorney’s judgment in giving advice or reviewing the agreement.

VII.
PUBLIC STATEMENTS and PROMOTIONAL ACTIVITIES

Public statements, announcements of services, advertising, and promotional activities of divorce mediators serve the purpose of helping the public make informed judgments and choices about divorce mediation and its alternatives. Mediators shall represent accurately and objectively their professional qualifications, affiliations, and functions, as well as those of the institutions or organizations with which they or their statements may be associated. In public statements providing information or professional opinions related to divorce mediation, mediators base their statements on acceptable professional opinion, current knowledge, and research data, with full recognition of the limits and uncertainties of such sources.

A. Professional Identification. When announcing or advertising professional services, mediators may list the following information to describe the provider and services offered; name, relevant academic degrees, relevant training in mediation, date, type and level of certification or licensure, appropriate professional affiliations and membership status, address, telephone number, office hours, a brief listing of the type of services provided, an appropriate presentation of fee information, and foreign languages spoken. Additional relevant or important consumer information may be included, if not prohibited by other sections of the professional standards.

B. Misrepresentation or Abuse in Public Announcements. In announcing or advertising the availability of divorce mediation services, products, or publication, mediators do not represent their affiliations with any organizations in a manner that falsely implies sponsorship or certification by those organizations. Public statements, including but not limited to communication by means of periodical, book, list, directory, television, radio, or motion pictures, shall not contain (1) false, fraudulent, misleading, deceptive, or unfair statements; (2) misrepresentation of facts, or statements likely to mislead or deceive by making only partial disclosure of relevant facts; (3) testimonials from clients regarding the quality of mediators’ services or products; (4) statements intended or likely to appeal to clients’ fears, anxieties, or emotions concerning the possible results of failure to obtain the offered services; or (5) statements intended or likely to create false or unjustified expectations of favorable results.

C. Solicitation. Mediators shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity in a news item. This does not preclude payments for publicity and/or advertising.

D. Accurate and Adequate Information. When functioning as teachers or trainers of mediation, mediators shall ensure that announcements and publicity are accurate and not misleading, particularly with regard to whether or not the event involved is being presented and intended as a training event for divorce mediators. Announcements, brochures, or advertisements describing workshops, seminars, or other educational programs accurately present intended audience and eligibility requirements, educational objectives, and nature of the material to be covered, as well as the education, training, and experience of the mediators who present the programs, and any fees involved.

E. Obligation to Correct. Mediators shall accept the obligation to correct others who, when representing the mediator’s professional qualifications or associations with products or services, do so in a manner incompatible with these guidelines.

VIII.
RESEARCH

Mediators recognize that research is essential to the advancement of knowledge and that all investigations must be conducted with respect for the rights and dignity of participants and with concern for their welfare. Specifically, the conditions of the Human Subjects Experimentation, as designated by the Department of Health and Human Services of the United States Federal Government, shall be adhered to. When involved in research, mediators shall advise research participants of the funding source of sponsorship of the research and inform the participants of the nature of the study, either before or after the data collection.

A. Freedom of Choice. Ethical practice requires the investigator to respect the individual’s freedom to decline to participate in, or to withdraw from, research. The obligation to protect this freedom requires special vigilance when the investigator is in a position of power over the participant, as, for example, when the participant is a student, client, employee, or otherwise is in a dual relationship with the investigator.


Ethically acceptable research begins with the establishment of a clear and fair agreement between the investigator and the research participant that clarifies the responsibilities of each. The investigator has the obligation to honor all promises and commitments included in that agreement.

IX.
UNETHICAL CONDUCT

A. Accountability. Acceptance into The Mediation Council of Illinois (TMCI) entails the acceptance by the member of the judgment of one’s fellow members as to standards of professional ethics, subject to the safeguards provided as follows. Acceptance of membership involves explicit agreement to abide by the acts of discipline herein set forth. Should a member be expelled from the council, that member shall at once surrender his or her membership certificate to the Ethics Committee.

B. Procedures. It is the duty of each member to maintain high standards of ethical practice. Should a fellow member appear to violate the foregoing Standards of Practice, a mediator who knows firsthand of such activities should, if possible, attempt to rectify the situation. If an informal solution fails, a formal complaint may be brought to TMCI’s Ethics Committee in accordance with following procedures:

(1)

Complaint of unethical practice shall be made in writing to the Ethics Committee. A copy of the complaint shall be furnished simultaneously to the person or persons against who it is directed.

(2)
The Ethics Committee shall decide whether the complaint warrants investigation.

(3)
The defendant shall have free access to all charges and evidence cited against him or her and shall have full freedom to defend himself or herself before the committee, including the right of legal counsel.

(4)
Recommendations to be made by the committee may include advice that the charges are unfounded, recommendation of specified admonishment, reprimand, probation, suspension, or dismissal from membership.