need to learn about the mediation process, what mediation can
and cannot accomplish, and how mediators should be trained.
If you understand how this process works, you'll have a better
chance of using mediation successfully.
1. What is mediation?
Mediation is a dispute resolution process that uses a trained person to assist other people in coming to their own agreements about how to resolve their conflict or dispute. Unlike a judge or arbitrator, the mediator does not decide the outcome of the dispute.
2. What training do I need to become a mediator?
The Academy recommends that mediators have completed a basic mediation training course to start and then continue to take additional training. Many mediators apprentice with other mediators or obtain supervision of other mediators for a time after they complete their basic training. A single training course may be helpful for you to determine if you have the interest and basic skills necessary to become a mediator, however, further training is essential in developing those skills and becoming familiar with the tough issues that mediators face daily.
Some states have set minimum standards for mediators to become certified and many court and community mediation centers have set requirements for mediators to be listed on their rosters.
The Academy of Family Mediators recommends that you ask all mediators you are considering using about their training and experience before selecting a mediator.
3. Is a mediated agreement binding?
If you are involved in a divorce or another family issue that is filed in court, any agreement you reach may be filed with the court. You should speak with your lawyer about how this works and what your options are.
If your dispute is not filed in court, the agreement is usually considered to be a contract. Depending on the nature of the agreement and the dispute, if there is a breach of the contract, you might be able to file a claim with the court. The mediator may recommend that you contact a lawyer if you have questions about this before or during a mediation.
Interestingly, mediated agreements have been found to be adhered to more often than judgments by the court. This makes sense if you know that no agreement may be reached in mediation unless everyone involved agrees.
4. Is mediation confidential?
Mediation is a private process, not open to the public. For the most part, what happens in the mediation is confidential. There may be certain limitations to confidentiality depending on state law or other factors. Make sure you talk about this issue with your mediator before you begin mediation. If the case is filed in court, you may be required to disclose the terms of the agreement you reach. Speak with your lawyer or mediator about this.
5. If I use mediation, will I need to go to court?
If you are using mediation in order to obtain a divorce, you will have to file in court for your divorce. However, if you are able to reach a mutually agreeable resolution to all of the property, financial, custody, parenting and other issues that you are attempting to resolve, and the court accepts your settlement, it is unlikely that you will have to make many court appearances. Generally, the more you do outside of the court to decide how you want to handle your divorce, the better.
If you are using mediation for other types of family issues, you may never need to go to court unless there is already a case filed in court.
6. Will I need a lawyer in order to use mediation?
In divorce cases, mediators will recommend that each spouse be represented by their own attorney. However, by using mediation, it is likely that you will use much fewer legal services and that those you use will be different than if you did not use mediation. You lawyer will provide you with guidance and legal counsel and will draft documents for filing with the court. Even if the mediator is a lawyer, the mediator is not acting as a lawyer and cannot represent either person in the divorce.
7. How do I find a mediator?
You may request a referral from the Academy of Family Mediators. The Academy will provide you with names of mediators in your area who have met stringent training and experience requirements set by the Academy.
8. What should I ask a mediator before choosing one?
You should approach hiring a mediator just like you would any other professional, such as a physician, lawyer, or accountant.
Generally, you should obtain the following information:
Training, experience, and background of the mediator. Experience or knowledge in mediating the type of dispute you have. Fees charged and how fees are divided among the parties to the mediation. Professional memberships. Whether the mediator is certified. (Certification is available only in certain states)
9. How much will mediation cost?
The cost of mediation can vary tremendously depending on where you live, whether the mediator is in private practice or works in a court or community mediation program. You should ask about fees up front.
Standards of Practice for Family and Divorce Mediation
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 interest 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.
II. Initiating the Process
A. 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.
B. Identification of Issues. The mediation shall elicit sufficient information from the participants so that they can mutually define and agree on the issues to be resolved in mediation.
C. Appropriateness of Mediation. The mediator shall help the participants evaluate the benefits, risks, and costs of mediation and the alternatives available to them.
D. Mediator's Duty of Disclosure.
1. Biases. The mediator shall disclose to the participants any biases or strong views relating to the issues to be mediated.
2. Training and Experience. The mediator's education, training, and experience to mediate the issues should be accurately described to the participants.III. Procedures
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.
A. 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.
IV. Impartiality and Neutrality
A. Impartiality. 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.
B. Neutrality. 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.
C. 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.
D. Relationship to Participants. The mediator should be aware that post-mediation professional or social relationships may compromise the mediator's continued availability as a neutral third party.
E. Conflict of Interest. A mediator should disclose any circumstance to the participants that might cause a conflict of interest.
V. Costs and Fees
A. 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.
B. Reasonable Fees. 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.
C. Contingent Fees. It is inappropriate for a mediator to charge contingent fees or to base fees on the outcome of mediation.
D. Referrals and Commissions. No commissions, rebates, or similar forms of remuneration shall be given or received for referral of clients for mediation services.
VI. Confidentiality and Exchange of Information
A. Confidentiality. 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
C. Appearing in Court. The mediator shall inform the parties of circumstances under which mediators may be compelled to testify in court.
D. 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.
E. 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 a re used for research or training purposes.
F. Caucus. 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.
G. Storage and Disposal of Records. The mediator shall maintain confidentiality in the storage and disposal of records.
H. Full Disclosure. The mediator shall require disclosure of all relevant information in the mediation process, as would reasonably occur in the judicial discovery process.
A. 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.
B. 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.
VIII. Professional Advice
A. 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.
B. Providing Information. A mediator shall give information only in those areas where qualified by training or experience.
C. 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.
IX. Parties' Ability to Negotiate
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.
A. Procedural Factors. The mediator has a duty to ensure balanced negotiations and should not permit manipulative or intimidating negotiation techniques.
B. Psychological Factors. 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.
X. Concluding Mediation
A. Full Agreement. The mediator shall discuss with the participants the process for formalization and implementation of the agreement.
B. Partial Agreement. When the participants reach a partial agreement, the mediator shall discuss with them procedures available to resolve the remaining issues. The mediator shall inform the participants of their right to withdraw from mediation at any time and for any reason.
C. Termination by Participants. The mediator shall inform the participants of their right to withdraw from mediation at any time and for any reason.
D. 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.
E. 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.
XI. Training and Education
A. Training. 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.
B. Continuing Education. 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.
XIII. Relationship with Other Professionals
A. 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 the mediation.
B. 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.
C. 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.
XIV. Advancement of Mediation
A. Mediation Service. A mediator is encouraged to provide some mediation service in the community for nominal or no fee.
B. 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.
Of Family Mediators
© 1998 Academy of Family Mediators.
20 U.S.C. § 1415 - Procedural Safeguards
(1) In general.--Any State educational agency or local educational agency that receives assistance under this part shall ensure that procedures are established and implemented to allow parties to disputes involving any matter described in subsection (b)(6) to resolve such disputes through a mediation process which, at a minimum, shall be available whenever a hearing is requested under subsection (f) or (k).
(2) Requirements.--Such procedures shall meet the following requirements:
(A) The procedures shall ensure that the mediation process--
(i) is voluntary on the part of the parties;
(ii) is not used to deny or delay a parentís right to a due process hearing under subsection (f), or to deny any other rights afforded under this part; and
(iii) is conducted by a qualified and impartial mediator who is trained in effective mediation techniques.
(B) A local educational agency or a Stateagency may establish procedures to require parents who choose not to use the mediation process to meet, at a time and location convenient to the parents, with a disinterested party who is under contract with--
(i) a parent training and information center or community parent resource center in the State established under section 682 or 683; or
(ii) an appropriate alternative dispute resolution entity; to encourage the use, and explain the benefits, of the mediation process to the parents.
(C) The State shall maintain a list of individuals who are qualified mediators and knowledgeable in laws and regulations relating to the provision of special education and related services.
(D) The State shall bear the cost of the mediation process, including the costs of meetings described in subparagraph (B).
(E) Each session in the mediation process shall be scheduled in a timely manner and shall be held in a location that is convenient to the parties to the dispute.
(F) An agreement reached by the parties to the dispute in the mediation process shall be set forth in a written mediation agreement.
(G) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearings or civil proceedings and the parties to the mediation process may be required to sign a confidentiality pledge prior to the commencement of such process.