Guidelines for Professional Practice of Family Mediators

For the purpose of this Code of Practice, family mediation has been defined as follows :

"Family Mediation is a non-adversarial, co-operative decision-making process in which a qualified and impartial third party, "the mediator", helps family members resolve by agreement their disputes, including but not limited to those arising from separation or divorce. The resolution is to be voluntary and based upon sufficient information and advice for each party."

For the purpose of this Code of Practice the term mediator should be read as including mediators in the context of co-mediation.

CODE OF PRACTICE

A. PRE-MEDIATION PROCESS

The mediator shall explain the mediation process clearly to the parties at a pre-mediation session before agreeing to mediate their dispute. In particular, the mediator shall :

a. Introduce the aims, objectives, principles and working procedures of mediation to the parties and describe the differences and similarities between mediation and other procedures for dispute resolution. In so doing, the mediator shall distinguish it from therapy, counselling, custody evaluation and advocacy.

b. Use his or her professional skills to make an assessment with the parties about their level of readiness for mediation. When one or both parties emotions are too intense or when there is a severe power imbalance, for example situations involving domestic violence, mediation may not be suitable.

c. Elicit sufficient information from the parties so that they can mutually define and agree on the issues to be resolved in mediation.

d. Advise the parties that either of them or the mediator has the right to suspend or terminate the mediation process at any time.

e. Disclose to the parties any biases or strong views he or she holds relating to the issues to be mediated and to discuss whether it is appropriate for him or her to mediate the dispute.

f. Advise the parties of the mediator's level of educational qualifications, training and experience.

g. Discuss with the parties the specific procedures and practices of mediation and reach an understanding with them regarding those to be followed in mediation. This includes, but is not limited to, the practice as to separate meetings between one party and the mediator, confidentiality, use of other professional services, the involvement of additional parties, and conditions under which mediation may be terminated.

h. Advise the parties that the following exceptions shall apply to the confidentiality duty :-

(i) When there is the written consent of all parties.

(ii) When the information discloses an actual or potential threat to human life or safety. In particular the mediator shall advise the parties of the mediator's overriding duty to protect the best interests of the children.

i. Advise the parties of the role of legal advice in the mediation process. If the mediator is also a lawyer, he or she shall inform the parties that he or she cannot represent either or both of them in any related legal action, nor can he or she give them legal advice during the mediation process.

j. Where financial or property issues are to be mediated, obtain an undertaking from the parties to make full and frank disclosure of their financial and related circumstances prior to commencing the mediation process. The mediator shall make it clear to the parties that he or she has no power to make independent enquiries or require verification to be given in relation to any such financial disclosure. The mediator shall also make it clear that each party may obtain independent legal advice as to the adequacy of the disclosure and whether the swearing of an affidavit disclosing their financial circumstances is required.

k. Make explicit the fees of mediation and any related costs and reach an agreement with the parties on how the costs will be shared and the manner of payment. When settling fees, the mediator shall ensure they are explicit, fair, reasonable and commensurate with the service to be performed. It is inappropriate for the mediator to base fees on the outcome of the mediation process. When a deposit has been collected before mediation services are rendered, any unearned fees shall be promptly returned to the parties upon the termination of mediation.

l. Arrange for an agreement regarding the duties and responsibilities that each is accepting in the mediation process to be written and signed by the parties and the mediator.

B. MEDIATION

I. Goal of Process and Responsibilities of the Parties and the Mediator

a. Mediation is a voluntary process with the responsibility for the resolution of a dispute resting with the parties.

b. The mediator's role is that of a facilitator with the primary responsibility being to assist the parties to reach an informed and voluntary settlement. At no time shall the mediator make a substantive decision for any party or coerce the parties into an agreement.

c. The goal of family mediation is a fair, mutually satisfactory, durable and harmonious resolution of the issues, not a settlement at any cost. If it is assessed that the parties are unable or unwilling to meaningfully participate in the process, the mediator may suspend or terminate mediation and refer the parties for appropriate professional assistance.

d. The mediator has a responsibility to promote the parties' consideration of the best interests of their children and in this regard the role of other persons in relation to the children (such as grand-parents or step-parents).

II. Ensuring Fair Mediation

a. The mediator shall endeavour to ensure that the parties reach agreement freely, voluntarily, without undue influence and on the basis of informed consent.

b. The mediator shall ensure that each party has had an opportunity to understand the implications and ramifications of available options. In the event that a party needs either additional information or assistance in order for the mediation to proceed in a fair and orderly manner, or for an agreement to be reached, the mediator shall refer the parties for this additional information or assistance.

c. The mediator has a duty to ensure balanced mediation and shall not permit manipulative or intimidating negotiating techniques.

d. The mediator shall take note of the fact that one of the parties may attempt to use the mediation process as a tactic to establish a status quo which is to the detriment of the other party.

e. Potentially unfair agreements, evolving from a power imbalance shall be discouraged and mediation may need to be suspended.

III. Duties regarding Information, Disclosure and Advice

a. It is the duty of the mediator to actively encourage the parties to make decisions based on sufficient information, knowledge and advice. This includes assisting the parties to obtain independent expert information and advice.

b. When the mediation may affect legal rights and obligations, the mediator ha an ongoing obligation to advise the parties to obtain independent legal advice where appropriate during the mediation process.

c. The mediator shall ensure that both parties are given an opportunity during the course of the mediation to make enquiries about the financial disclosure given by the other, and to request any additional information and documents that may be required.

IV. Duties regarding Impartiality

a. The mediator shall maintain impartiality. Impartiality implies a commitment to aid both parties by freedom from favoritism or bias either in word or action. Impartiality means that the mediator will not play an adversarial role.

b. The mediator has a responsibility to maintain impartiality while raising questions as to the fairness, equity, and feasibility of proposed options for settlement.

c. A mediator shall guard against becoming partial as a result of a power imbalance between the parties.

d. The perception by one or both the parties that the mediator is partial does not in itself require the mediator to withdraw, but in such circumstances, the mediator shall remind both parties of their right to terminate the mediation.

V. Duties regarding Neutrality

a. If the mediator believes that the mediator's background or personal experiences would prejudice his or her performance, the mediator shall withdraw from mediation. If either of the parties states that he or she believes that the mediator's background or personal experience would prejudice the mediator's performance, the mediator shall remind the parties of their right to terminate the mediation.

b. The mediator shall refrain from mediating in cases where there has been any significant prior personal or professional involvement between the mediator and one of the parties, unless every party expressly consents to the mediation proceeding after there has been full disclosure of such prior involvement. In this case, the mediator shall carefully distinguish his or her role qua mediator from the earlier relationship.

c. A counsellor - mediator or therapist mediator shall not offer counselling or therapy to either party during the mediation process.

d. A lawyer-mediator, or any partner or employee of the same firm of such lawyer-mediator, shall not represent either party during or after the mediation process in any related legal matters arising out of the issues discussed in the mediation.

e. The mediator shall be aware and advise the parties that post-mediation professional or social relationships may compromise the mediator's continued availability as a neutral third party.

f. The mediator shall be sensitive to the ethnic, cultural and gender diversity of all parties to the mediation.

VI. Duties regarding Confidentiality, Privileges, and Release of Information

a. Any information received by the mediator shall be confidential and shall not be revealed to anyone outside the mediation sessions.

b. Information received in an individual session is not to be revealed in joint sessions without receiving the prior consent of the relevant party to disclosure.

c. The following exceptions shall apply to the confidentiality duty :

(i) When there is the written consent of all parties.

(ii) When the information discloses an actual or potential threat to human life or safety. Any information divulged shall be limited to what is absolutely necessary.

d. The mediator and his or her staff shall maintain confidentiality of clients' files.

e. All discussions and negotiations are to be held on a "privileged" or "without prejudice" basis and the parties are to be required to agree not to refer to any such discussions and negotiations in any proceedings that may subsequently take place, or to require the mediator to do so; save for any discussions or negotiations which both parties agree with the mediator are to be on an open basis. The same rule shall apply to the mediator's notes, and neither party may have access to the mediator's notes save those relating to any discussions or negotiations which both parties agree with the mediator are to be on an open basis.

f. The mediator shall not agree to attend any court hearing without the consent of both parties unless compelled to do so by a subpoena issued by the court. If subpoenaed the mediator shall claim privilege when called to give evidence in order to resist disclosure of confidential information. The mediator shall only given evidence and/or produce documents when ordered by the court to do so at the hearing.

g. Information arising from mediation may be used in teaching and/or writing but must be adequately disguised so as not to reveal the identity of the parties involved.

VII. Duties regarding Inter-Professional Relations

a. The mediator shall respect the complementary relationships among mediation, legal, mental health and other social services. He or she shall promote cooperation with other professionals and encourage clients to use other professional resources when appropriate.

b. Where there are co-mediators each has the responsibility to keep the other informed of developments in the mediation process.

c. During mediation, the mediator shall carefully avoid any appearance of disagreement with or criticism of his or her co-mediator.

VIII. Duties regarding Settlement or Termination Settlement

Settlement

a. The mediator shall prepare a written summary of the agreement, whether partial or complete, for the approval of and signature by the parties and the mediator. Such agreement shall not be legally binding on the parties and shall clearly so state.

b. The mediator shall advise the parties of their right to have the agreement formalised by their respective lawyers.

c. When the parties reach a partial agreement, the mediator shall discuss with them alternative procedures available to resolve the remaining issues and make referrals where appropriate.

Termination

a. Mediation is voluntary and either party or the mediator can terminate it at any time.

b. It is the right of the mediator to suspend or terminate mediation in the following circumstances :

(i) Whenever the continuation of the process is likely to harm or prejudice one or both of he parties or the best interests of the children.

(ii) Where the parties are unwilling or unable to meaningfully participate in the process.

c. If the parties reach an unresolvable impasse, the mediator shall not prolong unproductive discussions that would result in emotional and monetary costs to the parties.

d. The mediator has a duty not to withdraw his or her services except for good cause and upon reasonable notice to the parties.

C. ANCILLARY MATTERS

I. Duties regarding Training and Education

a. Mediators shall acquire substantive knowledge, training and procedural skills in accordance with the requirements of the Training Committee of the Family Mediation Committee and the Mediation Group.

b. Mediators are encouraged to engage in continuing education to ensure that their mediation skills are current and effective.

c. Mediators are encouraged to join with other mediators and members of related professions to promote mutual professional development.

II. Duties regarding Advertising and Promotional Activities

a. When advertising professional services, mediators shall restrict themselves to matters which educate and inform the public. These could include the following information to describe the mediator and the services offered: name, address, telephone number, office hours, relevant academic degree(s), relevant training and experience in mediation, appropriate professional affiliations and membership status, advantages of the mediation process, and any additional relevant or important consumer information.

b. Mediators are encouraged to promote the advancement of mediation by participating in research, publishing, and other forms of professional and public education.

III. Duties regarding Insurance

Mediators shall ensure that they are covered to a reasonably sufficient extent by professional indemnity insurance in their capacities as mediators.