I am a big fan of alternative dispute resolution such as mediation and collaborative law. Lawyers in New York are guided by the Code of Professional Responsibility. When I am in my role as a mediator, however, I am not acting as a lawyer at that time. Although I am both a matrimonial / family law attorney and also a mediator, mediators do not have to be lawyers. To guide mediators, in 2005 The American Bar Association and the American Arbitration adopted standards of conduct. The purpose of this blog entry is to summarize these standards and how they might apply to a New York Divorce Mediation.
The first standard is the principle of self determination. What this means to is that the decisions in mediation are to be made by the parties to the case, not the mediator. The mediator’s role is to guide and educate about the different options to settle the issues. For example, the mediator can explain different options for child custody like shared custody, joint legal custody, sole custody and joint custody with spheres of influence. Please click around my website or other blog entries for more information about any of these topics.
The second standard is that the mediator should have the qualifications to be able to properly handle the mediation be it from education, experience or training. In the context of divorce and family law this means: having matrimonial and family law knowledge; understanding how conflict impacts families and children; mediation process training as well as experience; and the ability to see how diversity and backgrounds impact people and situations. Mediators should be able to answer questions and provide information about their qualifications to potential mediation participants.
Mediators need to educate parties about the mediation process. He or she should evaluate the couple’s ability to go through a mediation before entering into an agreement to conduct a mediation. The knowledge relayed should include, but not be limited to: informing of the voluntary nature of decisions by both parties; how mediation is different from other routes like litigation or collaborative law; that courts need to approve any ultimate agreements; that parties can seek advice from their own sources like review attorneys, accountants, therapists and other professionals; that the mediator has an obligation to maintain confidentiality of the process and results; and that either side can stop the process among other items.
Conducting the mediation impartially is the fourth standard. The impartiality means a lack of bias to either side. Conflicts of interest due to prior relationships should be avoided. Any potential conflicts should be disclosed at the beginning to give the parties an opportunity to assess whether they are comfortable that the potential conflict is not problematic for anyone involved. Information obtained in the process should not be used by the mediator for personal gain.
The charges and fee schedule charged by the mediator should be fully explained. The fee agreement should be in writing and not be contingent on the results of the mediation. Any unearned portion of a retainer should be returned upon termination of the mediation. The mediation should be structured as to allow the parties to make decisions based on ample knowledge or information. Full and accurate disclosure by everyone should be made which can be through the consultation of appropriate additional experts. The mediator may give information that the mediator is qualified to provide based on training and experience, however the mediator should not give therapy or legal advice to the participants. Participants should be encouraged to use their own review attorneys before entering into a settlement agreement. If the parties want their own attorneys to participate in the sessions, that should be permitted by the mediator.
The seventh standard is confidentiality. Participants should be informed about the confidentiality policy of mediation. If a mediator receives a subpoena, the mediator should inform the participants right away. The mediator should not respond to a subpoena or provide testimony in response to a subpoena, without a court order, if the mediator believes that would be in contrast to the confidentiality requirements.
The participants to a mediation should be assisted in furthering the best interests of any children involved. All different options for parenting arrangements after separation or divorce can be explored. A child specialist’s involvement might be a good idea. Community resources and programs that assist with families and children transitioning family setups or domestic violence can be discussed. Parenting plans, decision making responsibilities, how these plans might be revised as time moves on, as well as future dispute resolution processes should be brought up. Children should not be in attendance for mediation sessions, except in extraordinary circumstances, which would require consent of the parents and any appointed court representative if there is on involved. Mediators should be knowledgeable about their jurisdictions laws regarding abuse and neglect of children and comply with any applicable child protection laws. Mediators should not accept mediations involving domestic abuse if they do not have the training. If domestic violence is a factor, an assessment should be made if the case is not appropriate for mediation because of control, overreaching or associated issues.
A mediator should halt the process if he or she feels that one of the parties is not able to participate in a meaningful way because of: safety; threat of abduction; drug or alcohol abuse; a belief that the agreement is unconscionable; illegal conduct being furthered by the mediation; the use of mediation to try to gain unfairly; or if impartiality has been compromised. A family mediator should be forthright in advertising and accurately represent their qualifications. Mediators should continue to maintain their qualifications by training, experience and education.
Please see our other blog entries and web pages for more information about mediation, litigation, collaborative law, matrimonial and family law topics. As always feel free to call about your free initial consultation. It would be our pleasure to speak with you about it.