These are the standards of practice that were promulgated by two national/international associations of family and divorce mediators, the Academy of Family Mediators (AFM) and the Association of Family and Conciliation Courts and published in 1984. The AFM has since merged with other organizations to become the Association for Conflict Resolution (ACR) and these Standards have been updated and replaced.
THESE STANDARDS HAVE BEEN UPDATED and REPLACED
Here, for historic reasons, are the original (OLD and REPLACED) standards:
Mediation is a family-centered conflict resolution process in which an impartial third party assists the participants to negotiate a consensual and informed settlement. In mediation, whether private or public, decision-making authority rests with the parties. The role of the mediator includes reducing the obstacles to communication, maximizing the exploration of alternatives, and addressing the needs of those it is agreed are involved or affected.
Mediation is based on principles of problem solving that focus on the needs and interests of the participants; fairness; privacy; self-determination; and the best interests of all family members.
These standards are intended to assist and guide public, private, voluntary, and mandatory mediation. It is understood that the manner of implementation and mediator adherence to these standards may be influenced by local law or court rule.
Definition and Description of Mediation
The mediator shall define mediation and describe the differences and similarities between mediation and other procedures for dispute resolution. In defining the process, the mediator shall delineate it from therapy, counseling, custody evaluation, arbitration, and advocacy.
Identification of Issues
The mediator shall elicit sufficient information from the participants so that they can mutually define and agree on the issues to be resolved in mediation.
Appropriateness of Mediation
The mediator shall help the participants evaluate the benefits, risks, and costs of mediation and the alternatives available to them.
Mediator’s Duty of Disclosure
Biases. The mediator shall disclose the participants any biases or strong views relating to the issues to be mediated.
Training and Experience. The mediator’s education, training, and experience to mediate the issues should be accurately described to the participants.
The mediator shall reach an understanding with the participants regarding the procedures to be followed in mediation. This includes but is not limited to the practice as to separate meetings between a participant and the mediator, confidentiality, use of legal services, the involvement of additional parties, and conditions under which mediation may be terminated.
Mutual Duties and Responsibilities
The mediator and the participants shall agree upon the duties and responsibilities that each is accepting in the mediation process. This may be a written or verbal agreement.
The mediator is obligated to maintain impartiality toward all participants. Impartiality means freedom from favoritism or bias, either in word or action. Impartiality implies a commitment to aid all participants, as opposed to a single individual, in reaching a mutually satisfactory agreement. Impartiality means that a mediator will not play an adversarial role.
The mediator has a responsibility to maintain impartiality while raising questions for the parties to consider as to the fairness, equity, and feasibility of proposed options for settlement.
Neutrality refers to the relationship that the mediator has with the disputing parties. If the mediator feels, or any one of the participants states, that the mediator’s background or personal experiences would prejudice the mediator’s performance, the mediator should withdraw from mediation unless all agree to proceed.
Prior Relationships. A mediator’s actual or perceived impartiality may be compromised by social or professional relationships with one of the participants at any point in time. The mediator shall not proceed if previous legal or counseling services have been provided to one of the participants. If such services have been provided to both participants, mediation shall not proceed unless the prior relationship has been discussed, the role of the mediator made distinct from the earlier relationship, and the participants given the opportunity to freely choose to proceed.
Conflicts of Interest. A mediator should disclose any circumstance to the participants that might cause a conflict of interest.
Explanation of Fees
The mediator shall explain the fees to be charged for mediation and any related costs and shall agree with the participants on how the fees will be shared and the manner of payment.
When setting fees, the mediator shall ensure that they are explicit, fair, reasonable, and commensurate with the service to be performed. Unearned fees should be promptly returned to the clients.
It is inappropriate for a mediator to charge contingent fees or to base fees on the outcome of mediation.
Referrals and Commissions
No commissions, rebates, or similar forms of remuneration shall be given or received for referral of clients for mediation services.
Confidentiality relates to the full and open disclosure necessary for the mediation process. A mediator shall foster the confidentiality of the process.
Limits of Confidentiality. The mediator shall inform the parties at the initial meeting of limitations on confidentiality, such as statutorily or judicially mandated reporting.
Appearing in Court. The mediator shall inform the parties of circumstances under which mediators may be compelled to testify in court.
Consequences of Disclosure of Facts Between Parties. The mediator shall discuss with the participants the potential consequences of their disclosure of facts to each other during the mediation process.
Release of Information
The mediator shall obtain the consent of the participants prior to releasing information to others. The mediator shall maintain confidentiality and render anonymous all identifying information when materials are used for research or training purposes.
The mediator shall discuss policy regarding confidentiality for individual caucuses. In the event that a mediator, on consent of the participants, speaks privately with any person not represented in mediation, including children, the mediator shall define how information received will be used.
Storage and Disposal of Records
The mediator shall maintain confidentiality in the storage and disposal of records.
The mediator shall require disclosure of all relevant information in the mediation process, as would reasonably occur in the judicial discovery process.
Responsibilities of the Participants and the Mediator
The primary responsibility for the resolution of a dispute rests with the participants. The mediator’s obligation is to assist the disputants in reaching an informed and voluntary settlement. At no time shall a mediator coerce a participant into agreement or make a substantive decision for any participant.
Responsibility to Third Parties
The mediator has a responsibility to promote the participants’ consideration of the interests of children and other persons affected by the agreement. The mediator also has a duty to assist parents to examine, apart from their own desires, the separate and individual needs of such people. The participants shall be encouraged to seek outside professional consultation when appropriate or when they are otherwise unable to agree on the needs of any individual affected by the agreement.
Independent Advice and Information
The mediator shall encourage and assist the participants to obtain independent expert information and advice when such information is needed to reach an informed agreement or to protect the rights of a participant.
A mediator shall give information only in those areas where qualified by training or experience.
Independent Legal Counsel
When the mediation may affect legal rights or obligations, the mediator shall advise the participants to seek independent legal counsel prior to resolving the issues and in conjunction with formalizing an agreement.
The mediator shall ensure that each participant has had an opportunity to understand the implications and ramifications of available options. In the event a participant needs either additional information or assistance in order for the negotiations to proceed in a fair and orderly manner or for an agreement to be reached, the mediator shall refer the individual to appropriate resources.
The mediator has a duty to ensure balanced negotiations and should not permit manipulative or intimidating negotiation techniques.
The mediator shall explore whether the participants are capable of participating in informed negotiations. The mediator may postpone mediation and refer the parties to appropriate resources if necessary.
Full Agreement. The mediator shall discuss with the participants the process for formalization and implementation of the agreement.
Partial Agreement. When the participants reach a partial agreement, the mediator shall discuss with them procedures available to resolve the remaining issues.
Termination by Participants. The mediator shall inform the participants of their right to withdraw from mediation at any time and for any reason.
Termination by Mediator. If the mediator believes that participants are unable or unwilling to participate meaningfully in the process or that a reasonable agreement is unlikely, the mediator may suspend or terminate mediation and should encourage the parties to seek appropriate professional help.
Impasse. If the participants reach a final impasse, the mediator should not prolong unproductive discussions that would result in emotional and monetary costs to the participants.
A mediator shall acquire substantive knowledge and procedural skill in the specialized area of practice. This may include but is not limited to family and human development, family law, divorce procedures, family finances, community resources, the mediation process, and professional ethics.
A mediator shall participate in continuing education and be personally responsible for ongoing professional growth. A mediator is encouraged to join with other mediators and members of related professions to promote mutual professional development.
A mediator shall make only accurate statements about the mediation process, its costs and benefits, and the mediator’s qualifications.
The Responsibility of the Mediator Toward Other Mediators
Relationship with Other Mediators. A mediator should not mediate any dispute that is being mediated by another mediator without first endeavoring to consult with the person or persons conducting such mediation.
Co-mediation. In those situations where more than one mediator is participating in a particular case, each mediator has a responsibility to keep the others informed of developments essential to a cooperative effort.
Relationships with Other Professionals
A mediator should respect the complementary relationship between mediation and legal, mental health, and other social services and should promote cooperation with other professionals.
A mediator is encouraged to provide some mediation service in the community for nominal or no fee.
Promotion of Mediation
A mediator shall promote the advancement of mediation by encouraging and participating in research, publishing, or other forms of professional and public education.
Many Middle Eastern scholars and practitioners trained in the United States have returned to their countries of origin ready to impart what they learned about Western conflict resolution techniques. In...By George E. Irani