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:
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.
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.
Standard
II
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.
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.
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.
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.
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.
Standard V
A
family mediator shall fully disclose and
explain the basis of any compensation, fees andcharges 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.
Standard VI
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.
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.
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.
Standard VIII
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.
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.
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.
Standard
X
A
family mediator shall recognize a family situation involving
domesticabuse 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.
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.
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.
Standard
XII
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.
Standard
XIII
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.
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.
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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