Back to Basics: Divorce Mediation Models & Standards
After attending a Continuing Legal Education mediation training class this week, I was pondering the ongoing debate between mediation styles. There is a culture which has sprung up in mediation practice in New Jersey which calls for caucusing. A caucus is a break out session during the mediation process. The mediator speaks independently and privately with each participant. New York follows a couple’s therapy model by expressly not caucusing with the participants so that all communications are shared from beginning to end. I am much more comfortable with the latter model. I have found that with all the attendant stress involved in the process, the participants exhale their relief that nothing will happen behind one’s back.
The argument in favor of caucusing appears to be that the mediation may discover an area of compromise that would not come out in front of the other party. I would think, however, that you would arrive at that place of compromise during the joint mediation session without having to worry about what needs to be kept confidential and what does not.
In researching the various mediation models including the pros and cons of caucusing, I found the definitions and basic standards formally set forth and adopted by Association of Family and Conciliation Courts, Association for Conflict Resolution and Mediate.com. The mission statement of this blog is to educate and support those individuals who find themselves contemplating divorce or at some stage in their divorce process. As a passionate believer in the benefits of the mediation process, it is important for the public to know the basics. What follows are the models and standards of mediation and mediators:
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:
- increase the self-determination of participants and their ability to communicate;
- promote the best interests of children; and
- 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:
- to serve as a guide for the conduct of family mediators;
- to inform the mediating participants of what they can expect; and
- 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:
- 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.
- 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.
- 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.
A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.
- 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.
- 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.
- A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process.
- 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.
- 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.
A family mediator shall be qualified by education and training to undertake the mediation.
- To perform the family mediator’s role, a mediator should:
- have knowledge of family law;
- 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;
- have education and training specific to the process of mediation;
- 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.
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.
- Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including:
- 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;
- distinguishing family mediation from other processes designed to address family issues and disputes;
- informing the participants that any agreements reached will be reviewed by the court when court approval is required;
- informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;
- 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;
- 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;
- 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.
- describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality;
- 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.
- 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.
- 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.
- Family mediators should not accept a dispute for mediation if they cannot satisfy the expectations of the participants concerning the timing of the process.
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.
- 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.
- 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.
- A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.
- 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.
- 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.
- A family mediator should guard against bias or partiality based on the participants’ personal characteristics, background or performance at the mediation.
- A family mediator should avoid conflicts of interest in recommending the services of other professionals.
- A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage
- 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.
A family mediator shall fully disclose and explain the basis of any compensation, fees and charges to the participants.
- 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.
- The participants’ written agreement to mediate their dispute should include a description of their fee arrangement with the mediator.
- A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.
- A mediator should not accept a fee for referral of a matter to another mediator or to any other person.
- Upon termination of mediation a mediator should return any unearned fee to the participants.
A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
- 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.
- 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.
- The mediator should recommend that the participants obtain independent legal representation before concluding an agreement.
- If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions.
- 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.
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.
- 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.
- Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.
- 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.
- 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.
- 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.
A family mediator shall assist participants in determining how to promote the best interests of children.
- 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:
- information about community resources and programs that can help the participants and their children cope with the consequences of family reorganization and family violence;
- problems that continuing conflict creates for children’s development and what steps might be taken to ameliorate the effects of conflict on the children;
- 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;
- the possible need to revise parenting plans as the developmental needs of the children evolve over time; and
- encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting plan
- The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions.
- 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.
- 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.
- 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.
- 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.
A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.
- As used in these Standards, child abuse or neglect is defined by applicable state law.
- 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.
- 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.
- The mediator should encourage the participants to explore appropriate services for the family.
- The mediator should consider the appropriateness of suspending or terminating the mediation process in light of the allegations.
A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly..
- As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation.
- A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training.
- 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.
- 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:
- establishing appropriate security arrangements;
- holding separate sessions with the participants even without the agreement of all participants;
- allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions;
- encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process;
- referring the participants to appropriate community resources;
- 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.
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.
- Circumstances under which a mediator should consider suspending or terminating the mediation, may include, among others:
- the safety of a participant or well-being of a child is threatened;
- a participant has or is threatening to abduct a child;
- a participant is unable to participate due to the influence of drugs, alcohol, or physical or mental condition;
- the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable;
- a participant is using the mediation to further illegal conduct;
- a participant is using the mediation process to gain an unfair advantage;
- 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.
A family mediator shall be truthful in the advertisement and solicitation for mediation.
- Mediators should refrain from promises and guarantees of results. A mediator should not advertise statistical settlement data or settlement rates.
- 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.
A family mediator shall acquire and maintain professional competence in mediation.
- 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.
- Mediators should participate in programs of peer consultation and should help train and mentor the work of less experienced mediators.
- Mediators should continuously strive to understand the impact of culture and diversity on the mediator’s practice.
< Programs Affiliated Court and Mediators Family of Regulation forState Considerations Policy>
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.
- 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.
- 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.
- 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.”