The mission of the Family Mediation Pilot Program is to provide a high quality, impartial, and efficient forum for resolving disputed parental rights and responsibilities matters through mediation.
To improve the lives of families and children who appear before the court by trying to resolve parental rights and responsibilities disputes through mediation in order to minimize family conflict, encourage shared decision-making, and support healthy relationships and communication among family members.
To support improved parental decision-making and to promote agreement and compromise vs. litigation and competition for time with children and for limited family resources in family cases
To improve access to mediation by providing funding for the limited time frame of the pilot program
To improve parental problem-solving and communication capacities
To create incentives to pursue mediation including flexibility to negotiate critical issues without judicial intervention
To determine best practices for family mediation in North Dakota
To improve rural access to mediation services, as well as access by underprivileged and minority persons
To work with the domestic violence services community in order to assess risk and provide services where appropriate; and to ensure proper protections are put in place and mediators are well-trained in signposts, risks, and exit planning strategies
To reduce post-decree litigation and conflict in family cases
To provide ethical standards for mediators in order to encourage high quality family mediation practice
To help the public, judiciary, and bar become more aware of the benefits and nature of the mediation process
Policies & Procedures:
This program is created under the auspices of the North Dakota Supreme Court. The Court has appointed the Joint Committee on Alternative Dispute Resolution, and the Subcommittee on Family Mediation, to collaborate on the program and provide guidance. This program is supported by North Dakota Supreme Court Administrative Order 17.
1) Program Management:
a. A full-time Family Mediation Program Administrator will manage and oversee the operation of the program under the auspices of the North Dakota Supreme Court.
b. The Administrator will directly report to the State Court Administrator and will act as a liaison to the district courts and the Joint Committee on Alternative Dispute Resolution, and the Subcommittee on Family Mediation.
c. The Administrator will be an employee of the State of North Dakota and compensated at a rate commensurate with market value and state policies.
d. The University of North Dakota Conflict Resolution Center will offer assistance to the program as needed by providing expertise, professional assistance, training and education. Compensation will be negotiated as required.
2) Research and Evaluation: The pilot programs will include a research and evaluation component. Bids will be solicited through an Request For Proposal process according to North Dakota State regulations, and require approval by the Administrator and the Joint Committee on Alternative Dispute Resolution.
3) Implementation Model for Court Annexed Referral to Family Mediation:
a. Within 10 days of filing, the following new cases will be referred by the clerk to the Family Mediation Program Administrator:
i. Any 'civil proceeding' in which parental rights and responsibilities or relocation with respect to a child is an issue; this term includes an original proceeding for a divorce, separation, paternity, and guardianship in which the issue may appear. This term also includes a proceeding for post-judgment to parental rights and responsibilities and requests to remove a child from the state.
ii. When the proceeding is a post-judgment motion for change of enforcement of parental rights and responsibilities, then the referral will be made only after a court order has determined that a prima facie case has been established, and if the court believes mediation may be useful to the parties and the children.
b. Mediation and Orientation: The Family Mediation Pilot Program will automatically provide up to 6 hours of combined pre-mediation orientations and mediation. Mediators will be compensated at the rate of $170/hour with a cap of $1020 per case. The Family Mediation Pilot Program requires that:
The parties will individually attend a pre-mediation orientation and screening with a designated mediator, and at least one joint mediation session. The pilot program will provide up to 6 hours of mediation without charge to the parties. Should the parties require additional sessions, they may purchase mediation from the mediator who will offer mediation at the rate of $170/hour. Parties may also apply to the Administrator for additional mediation sessions and may apply for a fee waiver or sliding scale fee should they qualify based upon economic factors. If the parties qualify for a fee reduction and have been approved for additional mediation, any "gap" between $170/hour and their ability to pay will be paid to the mediator under this program.
c. Exclusions: The clerk shall not refer proceedings where the parties have already started mediating prior to the time frame for starting the pilot program; where the parental rights and responsibilities are stipulated by the parties at the time of filing; or where a current domestic violence protection order or other order for protection between the parties currently exists.(1) In these cases, the court may not require mediation except in unusual cases where:
i. Mediation is requested by the victim of the domestic violence or sexual abuse, and an exception to the order of protection is made by the court;
ii. The mediation is provided by a mediator trained to address the needs and safety of victims where domestic violence is at issue;
iii. The victim of domestic violence is provided the opportunity for separate meetings during the mediation, and to mediate using separate rooms if they choose;
iv. The mediation takes place in a courthouse or other building where security measures are in place; and
v. The victim has an advocate or support person of their choice in the mediation.
d. Additions: In addition to the clerk referrals, a district judge or referee assigned to a a parental rights and responsibilities proceeding may at any time refer a case to family mediation, except as prohibited by this or any other rule or statute.
e. Court Procedures: Upon receipt of a case from the Clerk, the Family Mediation Program Administrator will assign a mediator to the case and prepare an order and schedule for mediation (Form A) for signature by the assigned judge. The order will be sent to the parties, attorneys, and the mediator, setting the following time frame for the mediation to take place:
i. The parties must contact the mediator and attend a pre-mediation orientation separately within 20 days of the date of the Mediation Scheduling Order.
ii. The mediation session(s) must take place within 90 days of the date of the Mediation Scheduling Order.
iii. Any requests to deviate from this time frame must be submitted to the judge presiding over the case in writing by the mediator and the parties, and the judge may allow a time extension for good cause.
iv. Once a case is assigned, the mediator will manage the case and report to the court as required in the Family Mediation Pilot Program Protocol.
v. Should any party fail to appear for orientation or mediation sessions, the mediator shall promptly notify the administrator for assistance, and who may report such violation to the court which may order the party(s) to show cause.
vi. The mediation process is not a stay on any interim process.
f. Pre-Mediation Orientation: The Family Mediation Pilot Program will provide a mediation orientation session for all parties in parental rights and responsibilities disputes. The orientation sessions are provided to the parties separately by the assigned mediator in a way that best meets the needs of the parties. The orientation session should be designed to make the parties aware of the following non-inclusive list:
i. What mediation is and is not;
ii. What to expect from the mediators;
iii. What the parties goals are for mediation;
iv. Any guidelines necessary to have constructive conversations;
v. ow to prepare for the mediation process;
vi. The role of the court, lawyers, and other experts;
vii. How fee payment works;
vii. The time line for mediation;
ix. Any relevant requirements of the Family Mediation Pilot Program;
g. Selection of Mediators: In order to mediate within the Family Mediation Pilot Program, mediators must meet the criteria set forth in Rule 8.9 or have a minimum of 40 hours of mediation training and 4 years of experience in family mediation with an average of 6 cases per year and follow the policies and procedures set forth. They may apply to be placed on the roster of family mediators in the manner indicated in Rule 8.9, and will be approved by the Family Mediation Program Administrator. Mediators must carry malpractice insurance that covers their mediation practice.
i. Mediation Assignment: Mediators will be assigned cases by the Administrator and will manage cases assigned to them from orientation and screening through conclusion of mediation.
ii. Conflicts of Interest & Bias: A mediator may not be removed unless the mediator and/or the parties' petition the Administrator based upon bias or conflicts of interest. Parties and attorneys may not request a change of mediator unless they present clear evidence of bias or conflict of interest as described in the standards provided in the Family Mediation Pilot Program Protocol.(2)
iii. Standards: All mediators must agree to follow the standards set forth in Protocol. Any violation of standards may be reported to the Administrator.
h. Confidentiality: The pilot program shall require confidence in the process by upholding highest ethical standards, including confidentiality. Mediators are prohibited from discussing or revealing the details of mediation discussions or about any party to any judge, magistrate, or third party.(3)
i. Program Evaluation: All mediators and parties must cooperate with the research and evaluation protocol to help measure the impact and success of the pilot program. This may include written comments, personal interview, and occasional observation during mediation, etc.
j. Additional Sessions: Should the parties require additional sessions, they may purchase mediation from the mediator who will offer mediation at the rate of $170/hour. Parties may also submit a request to the Administrator for additional mediation sessions and may apply for a fee waiver or sliding scale fee should they qualify based upon economic factors. If the parties qualify for a fee reduction, any "gap" between $170/hour and their ability to pay will be paid to the mediator under this program. Form B.
k. Agreements and Decision Summaries/Case Closing:
i. At the close of every case, the mediator and parties will create a written decision summary for the parties that notes any and all agreements made and uses the parties' own language. The parties will have 5 business days to reconsider the decisions made in mediation. If neither party files a written request to reconsider within 5 business days, the mediator shall send a copy of the decision summary to the parties and their attorneys, along with the Mediation Case Closing Form. (Form D). A copy of the closing form shall be filed with the clerk of court with a copy to the judge presiding over the case.
ii. At the close of every case, the mediator and the parties will complete the required evaluation forms and the mediator will submit those to the Administrator along with closing form, mediator log and the mediator's invoice form. The Mediator is responsible for collecting fees from the parties if appropriate.
l. Case Closing/Notification: The mediator will notify the Family Mediation Program Administrator when a case has concluded for any reason, and offer the following reasons: 1) Agreement has been reached in whole or part; or 2) The parties were unable to reach agreement. If the parties and the mediator believe more mediation sessions would help to resolve the case, the parties and the mediator can join in a request for additional sessions that will be paid by the parties on a sliding fee basis directly to the mediator.
SCHEDULE & ORDER FOR MEDIATION
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF ___________ _____________ JUDICIAL DISTRICT
CIVIL NO. __________
) FAMILY MEDIATION PILOT PROGRAM
vs. ) SCHEDULE & ORDER FOR MEDIATION
a) The above named parties are required to attend separate mediation orientation sessions in order to prepare for mediation, and shall attend mediation sessions in order to discuss and resolve issues related to their parental rights and responsibilities and related issues.
b) Mediator: The following mediator has been assigned to this case:
*If you know this mediator and have a conflict of interest, please notify the Family Mediation Program Administrator at at 701-328-2695 within 3 days of receipt of this order.
c) Each party must contact the mediator immediately upon receipt of this order and schedule and participate in a pre-mediation orientation session within 20 days of this order.
d) The parties must complete mediation within 90 days of this order unless the mediator and the parties join in a request to the Court for additional time to mediate.
e) Any failure to appear for pre-mediation orientation sessions or mediation sessions may result in issuance of an Order To Show Cause to the party who failed to appear. The mediator and the parties will make their best efforts to schedule orientation and mediation sessions within the time frame set forth here and within reasonable times that take into account each person's needs.
Signed this ____ day of _____________________, 2010.
By the Court:
REQUEST FOR ADDITIONAL MEDIATION SESSIONS
STATE OF NORTH DAKOTA IN DISTRICT COURT
COUNTY OF ___________ _____________ JUDICIAL DISTRICT
CIVIL NO. __________
) FAMILY MEDIATION PILOT PROGRAM
vs. ) REQUEST FOR ADDITIONAL MEDIATION SERVICES
The following party/parties makes the following request for additional mediation sessions:
a) Reasons for additional sessions:
Number of additional sessions requested: ___________________
Proposed date for completion of mediation: ___________________
b) The mediator in this case (name) _________________ agrees that additional mediation sessions are warranted for the above-stated reasons:
Signature: ________________________ Date: ______________
Decision: The Family Mediation Program Administrator ___ denies ____ grants addition sessions as requested above. If granted, all mediation must be completed by the following date:
Signature ________________________ Date _________________________
(Family Mediation Program Administrator)
cc: Judge ______________, Parties/Attorneys, Mediator
Family Mediation Pilot Program Fee Reduction Request
Name of Party Requesting Reduction/Waiver: ________________________
Case Number: _________________________________________
Please attach all of the following in order to have your case considered for further mediation sessions that are provided financially in whole or part by the Family Mediation Pilot Program:
1) Your most recent W2 form;
2) Your most recent Tax Return;
3) Proof of income from your current employers for the past 12 months;
4) List all property you own and the value of the property (vehicles, real estate, retirement savings, bank accounts, pension plans, etc.)
5) List monthly debts and provide documentation
6) Provide name and age of all children living with you or for whom you pay child support; provide a copy of any court order for child support, spousal support, medical and other insurance for the children, and day care expenses.
7) Any other documentation as required by the Family Mediation Program Administrator
Once the Family Mediation Program Administrator has made a determination of your eligibility to pay for mediation services, you will be notified of the decision. You may be required to pay in full or part for the mediation services ($170/hour or less). The mediator in your case will provide you with an invoice if appropriate, and you are required to pay for mediation services rendered if ineligible for fee reduction.
Under penalty of perjury, I agree that I have provided full and truthful disclosure and evidence of my financial condition.
Date Name (print)
United States Department of Health and Human Services Poverty Guidelines
Eligibility Standards Effective April 1, 2010
Income Limitations for additional mediation time
For all states (except Alaska and Hawaii) and for the District of Columbia
|Size of Family Unit||
100 Percent of Poverty
110 Percent of Poverty
125 Percent of Poverty
150 Percent of Poverty
175 Percent of Poverty
185 Percent of Poverty
200 Percent of Poverty
For family units with more than 8 members, add $3,740 for each additional person at 100% of poverty; $4,114 at 110 %; $4,675 at 125%; $5,610 at 150%; $6,545 at 175%; $6,919 at 185% and $7,480 at 200% of poverty.
Note: For optional use in FFY 2009 and mandatory use in FFY 2010
Page Last Updated: April 5, 2010
How to Determine Income for Eligibility Purposes
INCOME means total cash receipts before taxes of all persons who are resident members and who contribute to the support of a household. For those with seasonal income, figure the annual income before making a determination. Seasonal income should be figured on an annual basis to determine eligibility. Describe type of job, length of employment, and regularity of the employment.
GUIDE FOR PARTICIPANTS IN MEDIATION
(TO BE SENT TO THE PARTIES WITH THE SCHEDULING ORDER AND REVIEWED WITH THE PARTIES DURING ORIENTATION AND AT THE BEGINNING OF MEDIATION)
Mediation is a process in which an impartial mediator assists people in conflict to have a constructive conversation about their dispute in a neutral setting. It is expected that each participant say what they need to say and hear what they need to hear, so each person can develop a better understanding about his/her concerns and the perspectives of other participants. Through the discussion, the parties are able to make sound decisions for themselves and others affected by their decisions.
Parties are asked to adhere to the following principles:
1. Mediation is voluntary. Participants should not feel forced into making decisions during mediation and always have the option not to participate or discontinue the mediation at anytime (except as provided by law or court order).
2. Mediation involves informed decision-making. Participants are free to access any information that may help them make informed decisions during the mediation. Participants may want to consult with outside experts if they have specific questions or do not have knowledge about a particular issue in order to help facilitate the decision-making process. Attorneys are welcome to participate.
3. Participants make the decisions in mediation. Participants are solely responsible for making all decisions. There are many types of decisions that participants may make, including whether or not to pursue mediation, who should be involved in the discussion, how to explore additional information, what options are preferable, how parenting is shared among parents, how costs are shared, and other decisions, etc. However, participants should be careful to follow the law in North Dakota when making critical decisions about parenting, custody, visitation, and child support.
4. Mediators are impartial. Mediators will not make decisions for the participants or make any judgments about who is right or wrong. Mediators have no stake in any particular outcome and treat all participants in a fair and balanced way. Their main goal is to help create a helpful environment so the parties can discuss what is important and make voluntary, informed decisions. The parties will report any conflicts of interest or perceived bias by the mediator directly to the mediator and/or the Family Mediation Program Administrator.
5. Mediation is a confidential process. Mediators will not reveal anything that is said during mediation to any other person except as permitted by law and as required by the Family Mediation Pilot Program Research & Evaluation. Allegations of child abuse or threats of harm to any person will not be held confidential and may be revealed as appropriate by the mediator. Likewise, participants themselves are asked to keep confidential everything that is communicated during mediation, except as they agree otherwise or as permitted by law. No record of the mediation will be made, unless the parties reach agreements in which case a decision summary will be written by the mediator and provided to the parties, and then to the Court.
6. Summary of decisions. Mediators will assist the parties in developing a written summary of the decisions made at the mediation table. Each party will receive a copy and the mediator will keep a copy. The writing should be in the parties' language, capture what both parties have agreed to, and follow the form attached hereto and depending on what the case requires. Parties will have 5 business days within which to reconsider decisions made at the mediation table, and to review the decision summary with their attorneys. The mediator will not draft legal documents for the parties to sign and to be presented to the Court.
7. Research & evaluation. The Family Mediation Pilot Program requires that everyone participating in the process complete the evaluation tools provided in a timely manner. You will be asked to complete a form at the end of mediation, and may be contacted for an interview about your experiences in the process.
I have read and understand the principles related to mediation as described in the Guide for Participants in Mediation. (Signatures are required).
Signature of Participant Date
Address Phone Number
Signature of Participant Date
Address Phone Number
Signature and relationship to the parties Date
Address Phone Number
Signature and relationship to the parties Date
Address Phone Number
*Signatures are voluntary if mediation is mandated.
COMPONENTS OF MEDIATION ORIENTATION
*This is a general guide for mediators to consider, leaving discretion
with mediators to develop a personal style for orientation sessions
Pre-mediation orientations help build rapport with parties; help parties make voluntary, informed decisions about proceeding with mediation; provide opportunities for the parties to tell their story and become clearer about their issues and goals; and encourage parties' abilities to act and decide for themselves. It is also a time where the mediator begins to screen for ethical issues such as violence, capacity, and other issues.
The purposes of pre-mediation orientation illustrated below, and relate primarily to ensure that each party is prepared to participate in mediation. Preparation occurs on many dimensions: emotional, intellectual, financial, legal, etc. Pre-mediation orientation sessions allow mediators to explore their clients goals, issues, fears, and other matters, including screening for violence and issues of capacity.
Introduce yourself and talk generally with the party(ies), setting a friendly, helpful and comfortable tone for the meeting.
Ask if you can get anything for the party(ies) (e.g., coffee, water, paper/pen, etc.).
Talk about the purpose of the orientation.
Tell the party(ies) you are glad he/she is here today and considering mediation. Let he/she know you are here to help him/her with the conflict.
Listening to the Parties and Explaining the Mediation Process
Answer any questions the party may have about mediation and/or the orientation.
Listen to the party and discuss how mediation can work with his/her issues.
Screen for issues that are inappropriate for mediation and/or may negatively impact his/her decision-making.
Incapable of making decisions (e.g., under the influence).
Magical thinking -- someone thinking the mediator or the process will "solve" the issue for them.
Domestic violence or any fear from other party (see Domestic Violence screening).
Explain the Agreement to Mediation and How to Prepare for Mediation (see sample forms in this section).
Identify who needs to be at the table and their willingness to mediate.
Help the parties understand how the process works.
Explain the role of the mediator (may need to explain the difference between a mediator and an evaluator, advocate or arbitrator).
Explain the role of the parties (decision makers).
Explain the role of outside experts (help parties make informed decisions) and work with parties to determine what experts they may want to talk with prior to mediation.
Discuss confidentiality (mediator, parties, exceptions -- for more information see Section 7) and Discuss the need for disclosure (success of the process).
Explain the role of a caucus/separate meeting.
Provide forms for divorce mediation or parental rights and responsibilities mediation as appropriate.
Help Develop Clarity
Help parties become clearer about:
What issues they would like to bring to the table; helping parties reframe an issue in words they are comfortable saying to the other party or words that can be better heard by the other party.
What will help them say what they need to say and hear what they need to hear.
What their hot buttons are and whether they need guidelines.
What has or has not worked in talking with the other party in the past.
What would improve their ability to communicate.
Help Parties Take the Perspective of Other
Help parties become clearer about:
How they view the other person's role in the conflict.
What would help them be more open and responsive to the other party.
What hot buttons they push in the other party.
Help Parties Explore What They Want
Ask each party what they hope to accomplish during mediation.
Explore any goals they have for conflict resolution.
Determine if parties want to continue to mediation and support their decision.
Scheduling & Fees
Clearly describe fees to parties.
Discuss availability and scheduling (possible dates and times).
Explain that parties will be asked to complete the Program research and evaluation forms rating their satisfaction with the process following the mediation session (see sample forms in this section).
HOW TO PREPARE FOR MEDIATION
(GIVEN TO PARTIES DURING ORIENTATION)
All parties will go through the pre-mediation process and should have a similar understanding of how the process will work. Mediators will not negotiate points between the parties prior to the mediation. If there are issues that need to be negotiated or clarified, the parties must do that independently or wait until they come to mediation. Please be clear that you may be in violation of an order of the Court should you fail to cooperate in the mediation process and ask your attorney, the mediator, or the Family Mediation Program Administrator if you have any questions.
Scheduling: The mediator will work with the parties to make arrangements for a date and time that will work for all parties. Inform the mediator of any concerns or constraints that you may have. If you need to cancel, reschedule, or change your availability to mediate, please call the mediator as soon as possible. Failure to communicate and appear for mediation could result in further action by the Court.
Process: As outlined in the Agreement to Mediate, the mediation process has several components that can make this a beneficial option for parties in conflict. Some of the issues to consider include:
Voluntary nature of mediation The role of outside experts
Informed decision making by the parties The role of the mediators
Confidentiality The role of the parties
Family legal issues The role of attorneys
Fees: Fees are paid by a grant from the North Dakota Supreme Court for mediation including the pre-mediation orientation sessions. Should you require more sessions, you may petition the Family Mediation Program Administrator to have the fees covered in whole or part if you are qualify by demonstrating your income to the Administrator. The fee paid to mediators is $170/hour. Any fees you owe must be paid to your mediator within 10 days of completion of the mediation.
Who should participate in mediation?
Identify who you think should be present in order to fully discuss the issues and to help you reach your goals. Should there be a conflict about who is present, that issue will be explored with the participants before the first mediation session.
Questions to consider:
What do you hope to accomplish by mediating? What are your goals?
What are the issues or topics that you need to address to accomplish your goals?
Are there outside experts that you need to consult or is there information you need before you come to mediation?
Is there anything that will help you to communicate better during the mediation?
MEDIATOR DOMESTIC VIOLENCE SCREENING TOOL AND SAFETY PLANNING
(Structure and Guidelines for Assessing Domestic Violence)
As you conduct the mediation orientation, it is important to be aware of the questions in the Mediator Screening Tool, so you can use them to assess for the presence of domestic violence. Integrate the questions in the Mediator Screening Tool so you are able to assess for the presence of domestic violence, and more importantly determine if mediation is appropriate for the party.
A mediator should ask the following questions during an orientation to assess for domestic violence between the parties.
Section 1: Control, Coercion, Intimidation, Fear
(a) When you look back over time, how were decisions made in your marriage/relationship?
(b) What happens when you speak your mind and express your point of view to the other party?
(c) When you and the other party fight and/or are angry at each other, what happens?
(d) Has the other party ever prevented you (or tried to prevent you) from having contact with family or friends, or your children?
(e) Has the other party ever denied you access to money for food, shelter, clothing, medical needs, etc.?
(f) Has the other party ever threatened to hurt or kill you or him/herself?
(g) Do you have any concerns about sitting in the same room mediating with the other party?
If yes, ask the following questions:
(i) What are your concerns?
(ii) If your attorney or an advocate was present with you in the room would you still have these concerns?
(iii) If you and the other party were in separate rooms during the mediation, would you still have these concerns?
Section 2: Violence/Fear of Violence
(a) Has there ever been any physical confrontation between you and the other party? If so, what happened?
(b) Do you ever feel afraid of the other party? What are you afraid of?
(c) Has the other party ever pushed, shoved, hit, kicked, choked or restrained you, or pulled your hair? If so, what happened?
(d) Has the other party ever used or threatened to use a weapon to harm you? Are there guns or weapons in your home? Does the other party have access to guns or other weapons?
(e) Has the other party ever damaged or destroyed your property, or harmed or threatened to harm your pets?
(f) Have you ever had medical treatment as a result of an injury caused by the other party?
(g) Has the other party ever harassed you by following you, interfering with your work or education, making repeated phone calls to you or sending you several unwanted letters, e-mails, faxes or gifts?
(h) Have you ever sought to have a Personal Protection Order issued against the other party? Was an order issued?
(i) Have you or any one else ever called the police because of problems in your home? If so, what happened?
(j) Are you afraid that the other party will physically harm you during the mediation or after you leave because of what you say in mediation?
(k) Are you in immediate danger?
If yes, stop the screening and proceed to Safety Planning.
If a party answered "yes" to any one of questions 2(a) through 2(j), this is an indication that mediation may not be appropriate for this party. However, do not terminate the screening process until the entire questionnaire is completed. Information gathered in the following sections may be useful if the party wishes to mediate despite the mediator's advice. This will assist the mediator to make a decision about whether or not to mediate.
Section 3: Children
(a) How are your children doing?
(b) Do you have any concerns about the safety of your children?
(c) Has the other party ever threatened to take the children or threatened to stop you from seeing them, or stopped you from seeing them?
Section 4: Other Considerations Regarding Ability to Participate
(a) Does either of you have a problem with alcohol or drugs? If so, please describe the problem.
(b) Does either of you have a history of mental illness or emotional problems? If so, please describe the history.
Monitoring by the mediator is a continuous responsibility throughout the mediation process. On-going screening for domestic violence should take place throughout all phases of mediation. It is the mediator's responsibility to terminate the orientation and/or mediation if she/he believes either of the parties is unable to mediate safely, fully and without fear or intimidation. There are times when during the course of an orientation no behaviors or comments suggest the presence of domestic violence, but during the course of the mediation something suggests domestic violence. If the mediator determines that mediation should not proceed, see Safe Termination .
B. MAKING A DECISION ABOUT WHETHER
OR NOT TO MEDIATE(5)
& SAFETY PLANNING(Based on responses to Questionnaire section in Mediator Screening Tool)
1) Party is in Immediate Danger (party answered "yes" to Question 2(k) in the Mediator Screening Tool)
If a party is in immediate danger, the mediator should advise the party that mediation is not appropriate. There are no circumstances under which mediation should proceed. You should then help the party with Safety Planning. If during the orientation no behaviors or comments suggest the presence of domestic violence, but something is revealed during the mediation and the party is in danger, go to Safe Termination of Mediation and then to Safety Planning.
2) No Apparent Immediate Danger, but the Abused Party Disclosed Violence by or Fear of the Other Party (party answered "no" to Question 2(k) but "yes" to any other question in Section 2 of the Mediator Screening Tool)
The mediator should advise the parties that mediation is not appropriate. The abusive party's willingness to proceed with mediation is irrelevant. Advise against mediation: "I do not think it is advisable for you to participate in mediation."
If the abused party concurs with the advice not to mediate, there are no circumstances under which mediation should proceed.
If the abused party disagrees with the advice against mediation and wants to mediate, then mediation should proceed only if ALL of the following apply:
The situation is not dangerous for the abused party or the mediator. Consider answers to Section 2 of the Mediator Screening Tool.
The mediation is conducted by a skilled mediator.
The attorney for the abused party or an advocate for the abused party (such as a advocate from the local domestic violence program or a friend or family member) will be present during the mediation.
Both parties agree to these specific conditions.
Parties wait in separate waiting areas; parties are not left alone together.
The mediator assesses that the parties have the ability to participate voluntarily, fairly, safely, fully and relatively free of fear and intimidation. Consider answers to Sections 1 and 2 of the Mediator Screening Tool.
3) Non-Violent, but Abusive/Controlling (party answers "no" to all questions in Section 2, but "yes" to any question in Section 1(d) 1(g) or answers in Section 1(a) 1(c) indicate the existence of control, coercion or intimidation).
The mediator must determine whether either party lacks the ability to fully participate in the mediation and whether mediation could go forward under specific conditions, relatively free of fear and intimidation. Mediation should proceed only if ALL of the following apply:
The situation is not dangerous for the abused party or the mediator. Consider answers to Section 2 of the Mediator Screening Tool.
The mediation is conducted by a skilled mediator.
The mediator assesses that the parties have the ability to voluntarily, fairly, safely and fully participate, with or without an attorney or advocate present for the abused party, or with or without specific conditions to address concerns for safety and ability to participate and make decisions without coercion or fear. Consider answers to Sections 1 and 2 of the Mediator Screening Tool.
The abused party wants to mediate.
Parties wait in separate waiting areas; parties are not left alone together.
If, to ensure the ability to fully participate, the abused party requires the presence of an attorney or advocate during mediation, or a specialized process to which both parties agree, the mediation must be conducted with those accommodations.
4) Non-Violent, Non-Abusive and Non-Controlling, but Either Party Otherwise Lacks Capacity to Mediate (party answers "no" to all questions in Sections 1, 2 and 3 of the Mediator Screening Tool, but "yes" to any question in Section 4)
Regardless of the existence of domestic violence, if screening reveals any of the following the mediator must determine whether either party lacks the ability to fully participate in mediation or whether mediation could go forward under specific conditions.
There is a history of substance abuse or mental illness that is not presently controlled.
A party is not able to fully participate for her/himself and/or articulate her/his needs.
Mediation should proceed only if ALL of the following apply:
The situation is not dangerous for the parties or mediator.
The mediation is conducted by a skilled mediator.
The mediator assesses that the parties have the ability to participate voluntarily, fairly, safely and fully, with or without an attorney or advocate present, or with or without specific conditions to address concerns about capacity and ability to participate in mediation.
The parties want to mediate.
If, to ensure the ability to participate, a party requires the presence of an attorney or advocate during mediation, or a specialized process to which both parties agree, the mediation must be conducted with those accommodations.
5) Protection Order/Restraining Order In Effect (one party has a protection order/restraining order against the other party)
Any case between parties with a protection order/restraining order in effect should not be mediated. In addition, a mediator should not advise a party to have the protection order/restraining order temporarily rescinded in order to do mediation. Parties may believe that mediation is an extension of the court and the court's protection. Mediation cannot offer the same level of protection to a party. Most courts will not refer a case to mediation if a protection order/restraining order is in effect between the parties.
And finally, mediators should be concerned about potential consequences of mediating cases that involve domestic violence. Mediator malpractice liability is an issue. The process may do harm (physical and psychological). It may violate ethical and state laws/regulations/codes.
C. SAFETY PLANNING
A safety plan is a tool to help an abused party identify ways to stay safe. Most victims of domestic violence have a variety of methods that have helped keep them safe in the past. The mediator should take all discussions of fear and safety seriously. If a mediator has any questions at all during the course of the discussion with the abused party, call a local domestic violence program (e.g., Community Violence Intervention Center, Grand Forks, 701-746-8900) or the National Domestic Violence Hotline at 1-800-799-SAFE(7233). Here are several options to consider depending on the situation:
1. Ensure that there is a safe and private area in the office where the mediator can speak to the abused party alone.
2. Offer the use of a telephone so that the abused party can contact the local domestic violence program and/or the National Domestic Violence Hotline. Both of these organizations have trained professionals who are able to offer confidential services and should be able to the abused party create a safety plan.
3. If the abused party does not want to contract the hotlines, the mediator may ask the party's permission to call one or both of the hotlines for consultation. They should be able to walk the mediator through some basic safety planning strategies. The mediator should assure the abused party that this information is confidential and that the mediator will not disclose any of the information.
4. The party may be able to identify friends or family that have been helpful in the past or who are able to offer a place to stay. The mediator should offer the use of a telephone so that the party can contact family or friends, if the party wishes to do so.
5. Consider what the party will do when she/he leaves the mediator's office and where she/he will go. Work with the party to ensure that she/he will be safe during the rest of the day. Ask questions like: "What is your mode of transportation and is it safe? Where is your car parked? Do you have a safe place to spend the night?"
6. Discuss with the party whether she/he would like to contact the police to file a report or to request an escort.
7. Ask some of the following questions as you discuss safety:
In what way can I (and others) help you?
What do you feel you need to be safe?
What particular concerns do you have about your children's safety?
What have you tried in the past to protect yourself and your children (e.g., left for a few days, sought help from family, friends, or a shelter, fought back, got an order for protection)? Did any of these strategies help? Will any of them help you now?
Who in your support system will help you? How can they help? Can we involve them?
8. If the party has separated from the domestic violence perpetrator, evaluate the following options with him or her:
Changing the locks on doors and windows.
Installing a better security system -- window bars, locks, better lighting, smoke detectors and fire extinguishers.
Teaching the children to call the police or family and friends if violence occurs or they are snatched.
Talking to schools and childcare providers about who has permission to pick up the children and developing other special provisions to protect the children.
Finding a lawyer knowledgeable about family violence to explore custody, visitation, and divorce provisions that protect the children and the adult victim.
In rural areas where only the mailbox may be visible from the road, covering the box with bright colored paper so that police can more easily locate the home.
Obtaining an order of protection.
Telling neighbors that her/his partner is gone and asking them to inform her/him if she/he returns to the area.
Figuring out what she/he can do (or is willing to do) if/when her/his partner returns.
9. If the party is leaving the domestic violence perpetrator review the following with her/him:
How and when can she/he most safely leave? Does she/he have transportation? Money? A safe place to go?
Is she/he comfortable calling the police if she/he needs them?
Who will she/he tell or not tell about leaving?
Who in her/his support network does she/he trust to protect her/him?
What can she/he and others do so that her/his partner will not find her/him?
How will she/he travel safely to and from work or school or to pick up children?
What parental rights and responsibilities provisions would keep her/him and the children safe?
Would an order of protection be a viable option?
10. If the party is staying with the domestic violence perpetrator, review the following with her/him:
In an emergency what works best to keep her/him and the children safe?
Who can she/he call in a crisis?
Would she/he call the police if the violence starts again? Is there a phone in the house or can she/he work out a signal with the children or the neighbors to call the police or get help?
If she/he needs to flee temporarily, where can she/he go? Help her/him think through several places where she/he can go in a crisis. Write down the addresses and phone numbers.
Suggested Text for Safety Planning Assistance
"Based on what I've heard from you and observed, I am concerned for your safety. I would like you to consider contacting some professionals to help you come up with a plan to stay safe today. Most communities have organizations that provide services to survivors of domestic violence. These services often include confidential shelter, counseling, advocacy, support groups and counseling for your children. The phone number to our local domestic violence program is 701-746-0405. You can also call the National Domestic Violence Hotline at 1-800-799-SAFE (7233). The National Hotline can provide you with confidential advocacy and support and also refer you to the nearest domestic violence program. Please feel free to use my telephone."
For additional information about mediating cases involving domestic violence, please read and become familiar with the Association for Conflict Resolution's Standards of Practice for Family and Divorce Mediation, which outlines what to do in mediations that may involve domestic violence.
D. SAFE TERMINATION OF MEDIATION There are times when during the course of an orientation no behaviors or comments suggest the presence of domestic violence, but during the course of the mediation something suggests domestic violence. Anytime during the course of mediation, if either party decides to withdraw, or the mediator finds that mediation is not safe because of domestic violence, the mediation should be terminated in the following manner.
If domestic violence is revealed for the first time during a mediation session, the mediator should interrupt the proceeding and conduct a screening of each party separately to determine whether mediation is appropriate and whether the party who has been subject to the abuse understands the potential impact of abuse on the person's ability to participate in mediation fully and fairly.
The screening sessions can occur right after the interrupted mediation or screening sessions can be scheduled for future dates or the screening session for the abused party can take place immediately with the screening session for the other party scheduled for another day.
In any event, talk privately with the abused party to determine whether safety arrangements are necessary. If possible, make arrangements for the parties to leave separately. Consider whether to alert law enforcement or other security of the potential for violence and arrange for escort of the abused party to his/her transportation. Do not reveal the destination or means of transportation of the abused party to the other party.
Provide the abused party with information and referrals for assistance, including safety planning.
There are two positions to consider with regard to advising the parties about the reasons for termination of mediation.
Some domestic violence victim advocates and professionals who work with batterers in batterer intervention programs believe that, due to safety concerns, the mediator should not advise the parties that the reason for termination is domestic violence, regardless of whether the victim or abuser disclosed the violence. Other valid reasons for termination that could be provided to the parties include: mediation policies and procedures, parties too far apart in positions or interests, inability to fully participate, unwillingness to participate, substance abuse or mental illness (if known by both parties).
Some mediators believe that if the abuse is disclosed by the abuser or by both parties, it is appropriate to advise the parties that the reason for termination is domestic violence. If a mediator chooses this approach, the mediator must be careful to provide each party with the same information regarding the reasons for termination without violating confidentiality. If the violence is disclosed only by the victim, the mediator should not advise the parties that the reason for termination is domestic violence.
Violence should never be mediated. In other words, never mediate when the core issues is for one party to stop abusing the other party. "I'll stop hitting you if you stop seeing your friend, Jane."
The mediator must promote the safety of all parties in the mediation process, but it is important to remember not to create an artificial environment during the mediation. To say to parties "you can say whatever you want in here" may be harmful because a mediator cannot guarantee a party's safety outside the mediation session(s).
Suggested Text to the Abused and Abusive Party: Termination of Mediation after Orientation
"I have decided not to mediate this case. Many cases are not appropriate for mediation. It is my experience that with situations like yours, mediation may not be the best process. This orientation meeting fulfills the requirement for court ordered mediation. It is not a "failure" to terminate mediation and there are no legal repercussions for doing so. You may want to talk with an attorney about your situation."
Suggested Text: Termination of Mediation after Start of Mediation
"After observing the issues between you and your interactions with each other, I know from my experience that mediation may not be best process for you. Many cases are not appropriate for mediation. So rather than taking up your time and resources, I am terminating this mediation. It is not a "failure" to terminate mediation and there are no legal repercussions for doing so. You may want to talk with an attorney about your situation."
This screening tool was developed by the Michigan Supreme Court Office of Dispute Resolution. (2005). Domestic Violence and Child Abuse/Neglect Screening for Domestric Relations Mediation [On-line]. Available: http://courts.michigan.gov/scao/resources/standards/odr/dvprotocol.pdf. It was adapted for the Family Mediation Pilot Program with the permission of the Michigan Supreme Court Office of Dispute Resolution.
STATE OF NORTH DAKOTA IN DISTRICT
COUNTY OF ___________ _____________ JUDICIAL DISTRICT
CIVIL NO. __________
) FAMILY MEDIATION PILOT PROGRAM
vs. ) CLOSING FORM
The above-named parties have attended pre-mediation orientation sessions individually and ___ sessions and ___ hours of mediation jointly.
Mediation Outcome - parental rights and responsibilities only
_____ Agreement reached on all issues
_____ Agreement reached on some issues
_____ No agreement reached
Mediation Outcome - other issues in case
_____ Agreement reached on all other issues raised by parties
_____ Agreement reached on some other issues raised by parties
_____ No agreement reached on other issues raised by parties
Mediator's Names & Signature: ____________________________________________________
cc: The Judge, Family Mediation Program Administrator, Parties/Attorneys
ABA MODEL STANDARDS OF PRACTICE FOR FAMILY AND DIVORCE MEDIATION
Overview and Definitions
Family and divorce mediation ("family mediation" or "mediation") is a process in which a mediator, an impartial third party, facilitates communication between people in family disputes and facilitates their voluntary and informed decision-making. The family mediator assists communication, encourages understanding and helps the participants to understand each other. The family mediator works with the participants to explore options, make decisions and reach their own decisions.
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;
support decision making that is in the best interests of children; and
reduce the economic and emotional costs associated with the litigation 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:
1. to serve as a guide for the conduct of family mediators;
2. to inform the mediating participants of what they can expect; and
3. 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.
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 discussion and decision-making 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.
A family mediator shall be qualified by education and training to undertake the mediation.
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:
1. 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 give legal advice, evaluate the case, or impose or force any settlement on the parties;
2. distinguishing family mediation from other processes designed to address family issues and disputes;
3. informing the participants that any agreements reached will be reviewed by the court when court approval is required;
4. informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;
5. 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;
6. 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;
7. 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, 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
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.
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.
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.
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 basic 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' decisions in the from of a decision summery (vs. a legal agreement). The mediator should inform the participants that any decision summary or agreement should be reviewed by an independent attorney before it is signed.
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, and use standard exit planning strategies with the parties.
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.
A family mediator shall assist participants in determining how to promote the best interests of children.
A. The mediator should support the participants' exploration of 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 or an attorney may be appropriate for these purposes. The parties may be given the following list of topics for discussion (this is not an exhaustive list and there may be other topics):
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 local mediation administrator and/or 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. 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.
D. 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 if one exists.
E. 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.
F. 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.
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.
C. 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.
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.
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 or violates public policy or law;
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.
B. If 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.
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.
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.
Special Policy Considerations for State Regulation of Family Mediators and Court Affiliated Programs
The Model Standards recognize the National Standards for Court Connected Dispute Resolution Programs (1992). There are also state and local regulations governing such programs and family mediators. The following principles of organization and practice, however, are especially important for regulation of mediators and court-connected family mediation programs. They are worthy of separate mention.
A. Individual states or local courts should set standards and qualifications for family mediators including procedures for evaluations and handling grievances against mediators. In developing these standards and qualifications, regulators should consult with appropriate professional groups, including professional associations of family mediators.
B. When family mediators are appointed by a court or other institution, the appointing agency should make reasonable efforts to insure that each mediator is qualified for the appointment. If a list of family mediators qualified for court appointment exists, the requirements for being included on the list should be made public and available to all interested persons.
C. Confidentiality should not be construed to limit or prohibit the effective monitoring, research or evaluation of mediation programs by responsible individuals or academic institutions provided that no identifying information about any person involved in the mediation is disclosed without their prior written consent. Under appropriate circumstances, researchers may be permitted to obtain access to statistical data and, with the permission of the participants, to individual case files, observations of live mediations, and interviews with participants.
These Model Standards were developed by the Association for Conflict Resolution and were approved by the American Bar Association in February 2001.
1. Cross Ref. NDCC 14-09.1-02. This rule is intended to comply with the statute on mediation and the exclusion for domestic violence.
2. The Family Mediation Pilot Program Protocol is a guide to ensure quality and efficacy of the process as well as a working document for guiding the program as a whole.
3. Cross Ref. Rule 8.8(b); NDCC 14-09.1-06 (Confidentiality);
NDCC 31-04-11 (Mediation -
Inadmissibility of evidence -Exception).