Model Standards of Practice for Family and Divorce Mediation

http://www.sconet.state.oh.us/Dispute_Resolution/divorce/, Nov 22, 2004

MODEL STANDARDS OF PRACTICE FOR FAMILY AND DIVORCE MEDIATION

STANDARD I

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

STANDARD II

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

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 .

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.

STANDARD V

A family mediator shall fully disclose and explain the basis of any compensation, fees and charges 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 .

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

STANDARD VIII

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

STANDARD IX

A family mediator shall take reasonable steps to ascertain if a family situation involves child abuse or neglect and take appropriate steps to shape the mediation process accordingly.

STANDARD X

A family mediator shall take reasonable steps to ascertain if a family situation involves domestic abuse and shall take appropriate steps to shape the mediation process accordingly.

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 reason.

STANDARD XII

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

STANDARD XIII

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

All of the comments and suggestions for change were made in a constructive spirit.

Commentators generally supported the effort to develop Model Standards and expressed appreciation to the Symposium for its work.

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

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

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

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

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

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

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

Professor Andrew Schepard
Hofstra University School of Law
Hempstead, New York
August, 2000

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

Convening Organizations

The Association of Family and Conciliation Courts
The Family Law Section of the American Bar Association
National Council of Dispute Resolution Organizations

Which includes:
The Academy of Family Mediators
The American Bar Association Section of Dispute Resolution
The Association of Family and Conciliation Courts
Conflict Resolution Education Network
The National Association for Community Mediation
The National Conference on Peacemaking and Conflict Resolution
The Society of Professionals in Dispute Resolution

Model Standards Steering Committee

Phil Bushard, Association of Family and Conciliation Courts (1999-2000)
Christie Coates, Association of Family and Conciliation Courts (1998-2000)
Tom Fee, Facilitator, The Agreement Zone (1998-2000)
Jack Hanna, NCDRO Secretariat and American Bar Association Dispute Resolution Section (1999-2000)
Ann Milne, Association of Family and Conciliation Courts (1998-2000)
Sally Pope, NCDRO Secretariat and Academy of Family Mediators (1998-1999)
Eileen Pruett, Association of Family and Conciliation Courts (1999-2000) and Supreme Court of Ohio, Office of Dispute Resolution Programs
Andrew Schepard, Reporter, Hofstra University School of Law (1998-2000)
Tim Walker, American Bar Association Family Law Section (1998-2000)

Model Standards Symposium Participants

Organization
 Delegate
 
 
Academy of Family Mediators
 Sue Costello Lowe (New Orleans)
Sally Pope (Orlando)
Arnold Shienvold (New Orleans)
Hon. William Thomas (Chicago)
 
The Agreement Zone
 Tom Fee, facilitator (Orlando New Orleans, Chicago)
 
Wisconsin Association of Mediators
 Larry Kahn (Chicago)
 
American Academy of Matrimonial Lawyers
 Meredith Cohen (Orlando)
Joan Patsy Ostroy (New Orleans)
 
American Bar Association Commission on Domestic Violence
 Ann Barker (Orlando, New Orleans)
 
Section on Family Law
 Nancy Palmer (Orlando, New Orleans)
 
American Bar Association Section on Dispute Resolution
 
American Bar Association Section on Family Law
 Barbara Stark (Orlando, New Orleans)
Timothy Walker (New Orleans)
Benjamin Mackoff (Chicago)
 
Association of Family and Conciliation Courts
 Phil Bushard (Orlando, New Orleans)
Christie Coates (Orlando, Chicago)
Ann Milne (Orlando, New Orleans, Chicago)
Eileen Pruett (Orlando, New Orleans, Chicago)
Jan Shaw (Orlando)
Rosemary Vasquez (Orlando)
 
California Administrative Office of the Court
 Mimi Lyster (Orlando, New Orleans
 
Colorado Council of Mediators
 Silke Hansen (New Orleans)
 
Connecticut Council of Mediators
 Frances Calafiore (Chicago)
Robert Horowitz (New Orleans)
 
Delaware Federation for Dispute Resolution
 Jolly Clarkson-Shorter (Orlando)
 
Family and Divorce Mediation Council of New York
 Eli Uncyk (New Orleans)
 
Family Mediation Council of Louisiana
 Susan Norwood (New Orleans)
 
Florida Association of Professional Family Mediators
 Nancy Blanton (New Orleans) Richard Doelker (New Orleans)
 
Florida Dispute Resolution Center
 Sharon Press (Orlando, New Orleans, Chicago)
 
Hofstra University School of Law
 Andrew Schwpard, reporter ( Orlando, New Orleans, Chicago)
 
Indiana Association of Mediators
 Patrick Brown (Orlando)
Beth Kerns (Orlando)
 
Mediation Association of Northwest Ohio
 Richard Altman (Orlando, New Orleans, Chicago)
 
Mediation Association of Tennessee
 Jan Walden (Orlando)
 
Mediation Council of Illinois
 Jerald Kessler (Orlando, Chicago)
 
Montgomery County Mediation Center
 Winnie Backlund (Orlando, Chicago)
 
National Association for Community Mediation
 Carolee Robertson (Chicago)
 
National Conference on Peacemaking and Conflict Resolution
 S. Y. Bowland (New Orleans, Chicago)
 
New York State Council on Divorce Mediation
 Steven Abel (Orlando)
Glenn Dornfeld (New Orleans)
 
New York State Dispute Resolution Association
 Rosalyn Magidson (New Orleans, Chicago)
 
Pennsylvania Council of Mediators
 Winnie Backlund (Orlando, Chicago)
Grace Byler (New Orleans, Chicago)
 
Society for Professionals in Dispute Resolution
 Sharon Press (Orlando, New Orleans, Chicago)
 
State Bar of Wisconsin, Alternative Dispute Resolution Section
 Larry Kahn (Chicago)
 
Supreme Court of Ohio Dispute Resolution Program
 C. Eileen Pruett (Orlando, New Orleans, Chicago)
 
Tennessee Superior Court, ADR Commission
 Ann Barker (Orlando, New Orleans)
 

Additional Organizations Providing Written Commentary

Association of Broward County Mediators, by Amy Kirschner Hyman
Family and Divorce Mediation Council of Greater New York, by June Jacobson
Mediation Services and ADR Referrals, Seventh Judicial Circuit of Maryland, by Ramona Buck
Office of Dispute Resolution, Colorado Judicial Branch, by Robert Smith

Model Standards of Practice for Family and Divorce Mediation
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.

Standard I

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

A. 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.

B. 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.

C. A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process.

D. 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.

E. 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.

A. 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; and

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 .

A. 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 wishes of the participants. and t T he mediators, may not exclude attorneys, counselors, or advocates. The mediator shall take controlling statutes or rules into consideration.unless a statute or regulation otherwise requires or t T he mediator believes that may encourage and require the presence of another person is required or may be beneficial because when 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.

B. 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.

C. 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.

D. 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.

A. 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.

B. 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.

C. A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.

D. 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.

E. A family mediator should resolve all doubts in favor of disclosure.