Mediating With Handkerchiefs: the New Model Standards for Divorce Mediation

• Publication year: 2002
• Pages: 69

31 Colo.Law. 69 Colorado Lawyer 2002.

2002, January, Pg. 69. Mediating With Handkerchiefs: The New Model Standards for Divorce Mediation

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69

Vol. 31, No. 1, Pg. 69

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 69]

Specialty Law Columns
Alternative Dispute Resolution Column
Mediating With Handkerchiefs: The New Model Standards for Divorce Mediation
by Robert M. Smith

Colorado, unlike Florida,1 does not regulate or certify mediators. Although Colorado has a mediation statute that authorizes court-ordered alternative dispute resolution ("ADR") services and highly values confidentiality,2 anyone in the state can hold themselves out to the public as a mediator. One of the most sought-after ADR services in Colorado appears to be mediation for parties seeking a dissolution of their marriage—particularly if they have children —or who are returning to court for post-decree matters. Another sizeable group using mediation is comprised of never-married parents who wish to settle parental responsibility (formerly "custody") and parenting time (formerly "visitation") matters

This article discusses the Model Standards of Practice for Family and Divorce Mediation ("MSP") as the baseline to compare with the Colorado Model Standards of Conduct for Mediators ("CMS"). The author considers the MSP as appropriate for adoption for family/divorce mediators because it appears to be more comprehensive for family/divorce cases than the more general CMS (which covers mediation in cases other than family/divorce as well)

Background on Efforts to Establish Mediation
Standards

In 2000, five Colorado organizations and government entities3 jointly promulgated a series of voluntary, aspirational statewide mediator standards known as the CMS.4 The Colorado Council of Mediators and Mediation Organizations ("CCMO"), one of these organizations, has published the CMS on their website.5 The CMS is likely to be quite influential, as all CCMO domestic relations and civil "guidelines" mediators subscribe to them.6 To date efforts by a steering committee of these five organizations to implement a regulatory scheme for Colorado mediation based on the CMS have not succeeded due to a lack of consensus on the need for state regulation.

At the same time as the CMS was developed, a nationwide effort was under way to develop guidelines aimed specifically at family and divorce mediation. Building on a nearly twenty-year history of efforts, initiated by the Association of Family and Conciliation Courts ("AFCC"),7 the intention was to "create standards of practice that would increase public confidence in an evolving profession and provide guidance for its practitioners."8 The initial model standards that were published in 1984, however, did not address subsequently identified issues in family mediation, such as domestic violence and child abuse. In 1996, the Family Law Section of the American Bar Association ("ABA") created a Task Force on Standards of Practice for Divorce Mediation, which was later renamed the ABA Committee on Mediation.9

In 1998, AFCC, the ABA Family Law Section, and the National Council of Dispute Resolution Organizations (an umbrella group of six other ADR organizations) co-convened what became known as the Model Standards Symposium, which met in Orlando in late 1998, again in New Orleans sixteen months later, and finally in Chicago in the summer of 2000. In August 2000, the Symposium approved the MSP for enactment by the various states.10

As set forth below, the MSP provides clear, helpful guidance to family and divorce mediators, and should be considered as the specific aspirational standard for all domestic relations mediation organizations and mediators practicing in this state.11 The CMS is meant to serve as an aspirational standard for mediators of all types of issues. However, the author believes participants' concerns in family mediation—especially those concerns dealing with children's issues—are often so specific to domestic relations law that a separate set of standards needs to be available to provide guidance in these often highly charged mediation sessions.

Comparison of the Two Model Standards

The MSP begins with an overview of the purpose of family mediation, citing it as "a valuable option for many families" for its tendency to:

? increase the self-determination of participants and their ability to communicate;

? promote the best interests of children; and

? reduce the economic and emotional costs associated with the resolution of family disputes.

The overview then continues to describe the MSP as aspirational in character, with three different levels of guidance: may, for a practice that "can be deviated from in the exercise of good professional judgment"; should, for the most prevalent practice that "should be departed from only with very strong reason"; and shall, as the highest level of guidance and from which "the mediator should not have discretion to depart from the practice described."

Both the MSP and CMS employ the same definition of mediation—that process in which a mediator is an impartial third party who facilitates communication, promotes understanding, focuses the parties on their interests, and assists them in developing options to make informed decisions. Both standards stress that mediators do not make decisions for, nor impose a settlement upon, the parties.

The following comparison of the standards, and the Colorado ADR statute12 when appropriate, is based on the MSP, with a discussion of the relevant CMS omissions and differences. Readers are reminded that the CMS is intended by

CCMO to apply to all mediators, not just those who practice family or domestic relations mediation.

Standard I: Principle of
Self-Determination

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 on 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 of the needs and interests of others, and to facilitate agreement between 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.

Analysis

The comparable CMS ¶ I., "Principle of Self-Determination," simply calls on the mediator to "rely upon and encourage the ability of the parties to reach a voluntary, informed agreement"and then stresses that the mediator is an impartial facilitator who "shall not impose or force any settlement" nor "make substantive decisions for any party."

While both standards are in agreement as to the mediator's duty to serve as a facilitator in a voluntary process, the MSP appears to be more detailed and instructive than the CMS. In particular, the MSP recognizes the reality of occasional pressures outside of the participants and the process to reach an agreement, as well as delineates the defining characteristic of mediation—that of helping participants understand their own and each other's needs and interests. The MSP also emphasizes the duty of the mediator to describe this voluntary nature of the process, and to assure the participants that they can end the mediation sessions at any time without an agreement—although it does not seem to contemplate that the participants could reach some partial agreements that they would agree to be memorialized.

Standard II: Qualifications
Of the Mediator

A family mediator shall be qualified by education and training to undertake the mediation.

A. To perform the family mediator's role, a mediator should

1. have knowledge of family law;

2. have knowledge of and training in the impact of family conflict on parents, children, and other participants, including knowledge of child development, domestic abuse, and child abuse and neglect;

3. have education and training specific to the process of mediation; and

4. be able to recognize the impact of culture and diversity.

B. Family...