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Our Standards of Practice |
Association for Conflict Resolution
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 recognize a
family situation involving child abuse or neglect and take appropriate
steps to shape the mediation process accordingly.
STANDARD X: A family mediator shall recognize a
family situation involving domestic abuse and 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.
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:
A.
to serve as a guide for the conduct of family mediators;
B. to inform the mediating participants of what they can expect;
C.
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:
-
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.
A.
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;
1. distinguishing family mediation from other processes designed to address
family issues and disputes;
2. informing the participants that any agreements reached will be reviewed by
the court when court approval is required;
3. informing the participants that they may obtain independent advice from
attorneys, counsel, advocates, accountants, therapists or other
professionals during the mediation process;
4. 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;
5. 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;
6. 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,
7. 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.
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. 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.
F. A family mediator should guard against bias or partiality based on the
participants' personal characteristics, background or performance at the
mediation.
G.
A family mediator should avoid conflicts of interest in recommending the
services of other professionals.
H. A family mediator shall not use information about participants obtained in
a mediation for personal gain or advantage.
I. 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 and charges to the participants.
A.
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.
B. The participants' written agreement to mediate their dispute should
include a description of their fee arrangement with the mediator.
C.
A mediator should not enter into a fee agreement that is contingent upon
the results of the mediation or the amount of the settlement.
D. A mediator should not accept a fee for referral of a matter to another
mediator or to any other person.
E. 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.
A. 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.
B. 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.
C.
The mediator should recommend that the participants obtain independent
legal representation before concluding an agreement.
D. If the participants so desire, the mediator should allow attorneys,
counsel or advocates for the participants to be present at the mediation
sessions.
E. 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.
A.
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.
B. Prior to undertaking the mediation the mediator should inform the
participants of the limitations of confidentiality such as statutory,
judicially or ethically mandated reporting.
C.
As permitted by law, 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.
D. 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.
E. 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.
A. 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:
1.
information about community resources and programs that can help the
participants and their children cope with the consequences of family
reorganization and family violence;
2. problems that continuing conflict creates for children's development and
what steps might be taken to ameliorate the effects of conflict on the
children;
3. 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;
4. the possible need to revise parenting plans as the developmental needs of
the children evolve over time; and
5. encouragement to the participants to develop appropriate dispute
resolution mechanisms to facilitate future revisions of the parenting
plan.
B. The mediator should be sensitive to the impact of culture and religion on
parenting philosophy and other decisions.
C.
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.
D. 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.
E. 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.
F. 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.
G.
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, the mediator interviewing the
child and reporting to the parents, or a videotaped statement by the
child) 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.
A.
As used in these Standards, child abuse or neglect is defined by
applicable state law.
B. 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.
1. The mediator should encourage the participants to explore appropriate
services for the family.
2. 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
domestic abuse and take appropriate steps to shape the mediation process
accordingly.
A.
As used in these Standards, domestic abuse includes domestic violence as
defined by applicable state law and issues of control and intimidation.
B. A mediator shall not undertake a mediation in which the family situation
has been assessed to involve domestic abuse without appropriate and
adequate training.
C.
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.
D. 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:
1.
establishing appropriate security arrangements;
2.
holding separate sessions with the participants even without the agreement
of all participants;
3.
allowing a friend, representative, advocate, counsel or attorney to attend
the mediation sessions;
4.
encouraging the participants to be represented by an attorney, counsel or
an advocate throughout the mediation process;
5.
referring the participants to appropriate community resources;
6.
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 reason.
A.
Circumstances under which a mediator should consider suspending or
terminating the mediation, may include, among others:
1. the safety of a participant or well-being of a child is threatened;
2. a participant has or is threatening to abduct a child;
3. a participant is unable to participate due to the influence of drugs,
alcohol, or physical or mental condition;
4. the participants are about to enter into an agreement that the mediator
reasonably believes to be unconscionable;
5. a participant is using the mediation to further illegal conduct;
6. a participant is using the mediation process to gain an unfair advantage;
7. if the mediator believes the mediator's impartiality has been compromised
in accordance with Standard IV.
8.
f 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.
A.
Mediators should refrain from promises and guarantees of results. A
mediator should not advertise statistical settlement data or settlement
rates.
B. 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.
A. 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.
B. Mediators should participate in programs of peer consultation and should
help train and mentor the work of less experienced mediators.
C.
Mediators should continuously strive to understand the impact of
culture and diversity on the mediator's practice.
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