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What are Divorce Mediators Standards of Conduct?

January 2, 2018

Divorce mediation is becoming far more commonplace in this day and age than even was the case a decade ago. Divorce mediation permits a couple in marriage dissolution proceedings the opportunity to obtain impartial professional assistance in working to resolve issues in their case. With the growing importance of divorce mediation noted, there are certain standards of conduct that a divorce mediator adheres to in working with a couple to attempt to resolve issues in a marriage dissolution case.

Self Determination

A divorce mediator must always recognize that mediation itself is based on the fundamental principle of participating self determination. A mediator does not make decisions for a divorcing couple. Rather, the media aids a couple in making decisions on their own.

Proper Education

A mediator must have proper training to undertake divorce mediation. In New York, this means obtaining proper certification before a person can hold his or her self out as a qualified divorce mediator.

Facilitate Understanding of Mediation

The vast majority of divorcing couple have never had any experience with any type of mediation. They may have heard of the term, but they really do not know what it means. Indeed, oftentimes people mistake mediation for arbitration.

A divorce mediator must facilitate an understanding of what occurs in mediation with the parties. In addition, a mediator has an obligation to assess the capacity of parties to a divorce to mediate their differences before the process commences. Not all divorcing couples are in a position where the can mediate their differences.

Impartial Mediation

Impartiality is a foundation upon which divorce mediation is based. A divorce mediator must ensure that a mediation is conducted in a wholly impartial manner. If a mediator perceives that he or she has an actual or potential bias or conflict of interest reasonably known to the mediator, the parties seeking mediation must be informed of the same.

If a possible conflict is significant, a mediator must not work with a particular couple. If a conflict is not actually in existence and only a possibility, and if it is not deemed particularly significant, the participants are free to retain the mediator by signing an informed, written waiver of the potential conflict of interest, as fully disclosed by the mediator.

Full Explanation of Compensation

The mediator must fully disclose all aspects of compensation, fees, and charges to the participants in advance of commencing mediation. This includes a situation in which the court may have a program in which mediation is fully or partially paid for by the court system or some other entity that is not a party to the case.

Sufficient Knowledge in Decision Making

A mediator is obligated to structure the actual mediation process in such a way so that the participants are able to make decisions based upon a consideration of sufficient information. The participants must have a suitable level of knowledge about a particular issue so that there is no doubt that they make informed decisions during the course of a mediation.

Confidentiality

A family mediator must maintain the confidentiality of any and all information that is acquired during the course of the mediation process. There are some instances in which a mediator must disclose certain information because of a legal requirement. For example, if a mediator learns of a situation involving the abuse of a child during a mediation, that information must be disclosed to an appropriate law enforcement or social welfare authority.

The court may order mediation. In that situation, a judge may require certain reports from a mediator. The parties must be made fully aware of this requirement. Finally, there are situations in which the parties to a mediation will agree to permit a mediator to release certain information to a third party for a specific purpose.

Promote the Best Interests of Children

If a mediation will include issues pertaining to child custody or parenting time, a mediation shall assist the participants in determining how they can best promote those vital interests. This can include assisting a couple in developing a custody and associated parenting time arrangement that will advance the best interests of a child.

Recognize Child Abuse or Neglect

A mediator needs have the training necessary to be able to recognize a situation in which a family situation may be indicative of child neglect or abuse. A mediator must be capable of taking appropriate steps to respond to that type of situation, both in working with the parties and in making any reports to law enforcement or social welfare agencies that may be required by law.

Terminate Mediation

A mediator must be able to suspend or terminate all together a mediation process if the mediator reasonably concludes that a participant cannot effectively participate in mediation.

Truth in Advertising

If a mediator advertises his or her services, that marketing must be truthful.

Maintain Professional Competence

Finally, once a family mediator obtains a basic competence in the field, he or she must maintain it. That typically means attending required or voluntary programs of continuing education or training.

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