{"id":11785,"date":"2016-03-02T15:04:21","date_gmt":"2016-03-02T20:04:21","guid":{"rendered":"http:\/\/www.riverdalemediation.com\/?p=11785"},"modified":"2017-08-28T15:37:50","modified_gmt":"2017-08-28T19:37:50","slug":"practical-ethical-guidelines-for-comprehensive-family-mediation-part-4","status":"publish","type":"post","link":"https:\/\/www.riverdalemediation.com\/news-resources\/blog\/practical-ethical-guidelines-for-comprehensive-family-mediation-part-4\/","title":{"rendered":"Practical, Ethical Guidelines for Comprehensive Family Mediation: Part 4"},"content":{"rendered":"

\"Pink<\/a>In this part 4 of this blog series, Hilary sets out four practical\u00a0ethical \u201crules\u201d which should be considered in mediation\u00a0practice<\/h2>\n
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Four suggestions<\/strong><\/p>\n

Given the unique vulnerability of family mediation clients, and taking what exists already\u00a0in the form of codes of conduct for family mediators, the following is a set of practical\u00a0ethical \u201crules\u201d which should, in my view, be the minimum requirements for this kind of\u00a0mediation\u00a0practice:<\/p>\n

1. You must know and explain, openly and honestly, who you are, and how you\u00a0practice mediation. Morris calls this first step \u201cknow yourself\u201d. By this she means\u00a0understand your own ethical values, and the assumptions which underlie them.[25]\u00a0This in turn will impact the kind of mediation you tend to practice; for example,\u00a0what do you consider to be the goals of mediation and the indicia of success?\u00a0How do you deal with issues of confidentiality, particularly where the process\u00a0involves caucusing? Do you caucus? How hard and far do you \u201cpush\u201d parties to\u00a0be open, honest, vulnerable and empathetic with each other in the name of\u00a0reaching the goals of mediation? Are you prepared to be substantively evaluative if that is what the parties want? How do you deal with perceived bullying, lying,\u00a0deceit, manipulation (however you might define that complex concept) or mere\u00a0reluctance to fully participate? How hard do you try to enable the parties to realize\u00a0some type of transformation, as opposed to \u201cmerely\u201d reaching settlement? Much of this self-analysis will turn on your personality type; your natural inclinations to introversion or extroversion, to thinking or to feeling, and to sensing or to working with concrete facts will have a real impact on your own comfort levels and practices.[26]<\/p>\n

2. You must clarify, in writing, the reciprocal obligations and expectations between\u00a0you and your clients, in terms of ethics, process and outcome. This includes explaining to your clients \u201cwho\u201d you are and \u201chow\u201d you practice mediation as discussed above. This is the only way of fairly and honestly letting clients know\u00a0what to expect of you and what you expect of them, in order to reach the goals\u00a0that they and you share for the particular mediation. Most mediation agreements\u00a0state that the parties agree to mediate in good faith, but the expression of\u00a0reciprocal ethical obligations and expectations pretty much begins and ends there.\u00a0What do you expect of your clients ethically? And what do they expect of you?\u00a0Presumably you will covenant not to lie to or mislead each other [27]. Substantively,\u00a0the mediator and parties should identify at the outset the desired goal of the\u00a0process; such as mutual commitments for behaviour to prevent abuse, a property division agreement that both parties consider fair, processes for improved\u00a0communication, a sense of being heard, closure, to learn from past mistakes, a\u00a0parenting plan that puts the interests of the children first, an agreement to start or\u00a0continue counselling, and so on. The agreement should address how much\u00a0direction, evaluation, and legal information the parties want from you, as well as\u00a0your expectations of the parties in terms of them seeking legal and other advice.\u00a0Clarifying these expectations in writing not only reduces the possibility of\u00a0misunderstanding and disappointment during the mediation process, it protects the\u00a0parties from their own lack of knowledge about the process. It \u201cwarms them up\u201d\u00a0for what they need to do. And it makes it more likely that the sorts of conduct you\u00a0are covenanting not to engage in will in fact be avoided, making for a more useful\u00a0and positive experience for all. In doing so you will be protecting, in the most\u00a0effective way possible, the \u201cweaker\u201d party from bullying and other negative\u00a0behaviour that might otherwise cause them harm.[28]<\/p>\n

3. It is impossible to provide comprehensive family mediation in a way that is fair to\u00a0the parties unless you have practised family law. For example, it is unfair to the\u00a0parties for a non-family lawyer mediator to mediate a marriage contract. This is\u00a0because this kind of mediation necessarily and continually implicates the practice\u00a0of law.[29] A comprehensive family mediator must understand the nature and\u00a0complexity of the parties\u2019 legal rights and obligations in order to know whether\u00a0true informed consent exists; a non-family lawyer will be incapable of making\u00a0that assessment, or of determining if a party understands the legal advice he or she has been given sufficiently to apply informed consent. Some of the issues that will\u00a0be mediated are not only done so in the shadow of the law; child support law, for\u00a0example, cannot be contracted out of. The law must be applied and the parties will rightly look to the mediator for understanding as to how the guidelines operate.\u00a0Determining income pursuant to the guidelines, for the purpose of calculating child support, is complicated and technical, especially for self employed people.\u00a0A mediator who does not have legal skill and training risks doing harm to the\u00a0parties by mediating child support settlements. The mediator should be able to\u00a0competently guide the parties through financial disclosure issues and \u201cnet family\u00a0property\u201d calculations, as almost all separating couples will want to work through\u00a0the family law act provisions as a starting point for their discussion about division\u00a0of property. Legal skill and training is required just to know what assets are\u00a0valued and how; the parties are entitled to expect this kind of expertise and\u00a0guidance from their mediator. It is not the job of the mediator to judge the\u00a0settlement the parties make, nor to advise the parties of their rights and\u00a0obligations if they prefer to divide property in a way that is entirely different from\u00a0the Family Law Act. But the mediator must be able to help the parties work the\u00a0issues through based on the law and assess whether the consent to accept a\u00a0settlement is truly informed. If the mediator does not understand the law, he or\u00a0she will not be able to make this assessment.<\/p>\n

The mediator needs moral and substantive credibility in the eyes of the parties; otherwise a bully may take advantage of real or perceived superior legal\u00a0knowledge, resulting in a settlement that lacks real consent. The fair process that\u00a0is promised will not materialize; not will the anticipated fair result.<\/p>\n

How, one might ask, can there be a \u201crisk of harm\u201d to parties when the mediator\u00a0does not prepare a binding agreement? Most family mediators prepare only a nonbinding\u00a0memorandum of agreement which enables the parties to seek legal advice\u00a0on its proposed terms. (In fact, the FMC and OAFM Codes prohibit the\u00a0preparation of binding documents.) This practice serves the interests of nonlawyer\u00a0mediators as much, or more, than the interests of the parties; it gives the\u00a0mediator comfort, from a liability and unauthorized practice of law standpoint, in\u00a0mediating settlements notwithstanding the mediator\u2019s lack of substantive\u00a0expertise in the subject matter of the dispute. But it provides no comfort to parties\u00a0who commit in principle to settlements which they later learn, from their lawyers,\u00a0are profoundly unfair from a legal perspective. At this point, such settlements may\u00a0unravel, and the mediator has done more harm than if the parties had not mediated\u00a0at all. The promise of mediation will not have materialized and the hostility,\u00a0resentment and aggravation of the conflict may be worse.<\/p>\n

4. The mediator must never be lazy; ethically this translates into brutal honesty with\u00a0the parties and with yourself, a passion for the process and empathy for the\u00a0parties. The mediator must never tolerate conduct that takes away from the\u00a0realization of the goal of the process. The mediator is ethically obligated to push\u00a0the parties relentlessly to find out what is needed and why, and what lies behind a\u00a0party\u2019s resistance to do what is needed. It means aggressively and tirelessly\u00a0compelling the parties to verbalize the interests behind their positions, and to\u00a0make sure that each party understands the other. It means smoking out bad faith,\u00a0bullying, lies, misinformation and intentional half-truths, by talking about it, by\u00a0putting what you are seeing or intuiting \u201con the table\u201d for discussion; it \u00a0means\u00a0challenging the parties\u2019 assertions and assumptions without appearing partial; it\u00a0means never losing sight of the goal of the parties and the fairness of the process\u00a0by which you are trying to help them accomplish that. It means evaluating\u00a0positions that the parties may take if evaluation is what is needed to maintain a\u00a0fair process, and not tolerating disingenuous, self-serving conduct. It means\u00a0directing the parties towards possible solutions when that is what is needed, and\u00a0knowing when to bring in third parties to help break impasse or to obtain reliable\u00a0information that both parties trust. It means providing straightforward opinions\u00a0about assertions made by parties as to the legal merit of their argument if they are\u00a0just plain wrong, but doing so in an impartial and non-judgmental way. And it\u00a0means knowing when to leave the parties alone and completely stay out of the process.<\/p>\n

These four principles may appear to be incompatible with traditional notions of\u00a0\u201cneutrality\u201d and \u201cself-determination\u201d, but it is suggested that respecting and\u00a0practicing them will go a long way towards ensuring that real and meaningful\u00a0impartiality and self-determination are in fact occurring. The concept of \u201cneutrality\u201d,\u00a0for example, implies objectivity and distance from the source of the conflict. It is\u00a0derived from the law, as a result of the superficial similarity between the roles of\u00a0judge and mediator.[30] But the mediator\u2019s role is nothing like that of a judge. What\u00a0parties to mediation want is not actual neutrality, but the appearance of impartiality,\u00a0honesty, empathy and an ability to find a connection with each side\u2019s story.<\/p>\n

\u201cBecause neutrality implies objectivity and distance from the source of the\u00a0conflict, it cannot countenance empathy or give the mediator room to\u00a0acknowledge or experience grief, compassion, love, fear, anger or hope.\u00a0Neutrality can paralyze emotional honesty, intimate communication,\u00a0vulnerability and self-criticism. It can undermine shared responsibility,\u00a0prevention, creative problem-solving and organizational learning. It can\u00a0ignore the larger systems in which conflict occurs. It can fail to\u00a0comprehend spirit, forgiveness, transformation or healing, which are\u00a0essential in mediation. As a result, it can become a straitjacket and a check on our ability to unravel the sources of conflict.\u201d[31]<\/p>\n

Conclusion<\/strong><\/p>\n

Comprehensive family mediation is a high-risk area of practice. The decisions made in\u00a0mediation and the way in which they are made will affect the parties and their children\u00a0for the rest of their lives.\u00a0The mediation process is occurring in the context of a very complex and difficult body of\u00a0substantive law that is rapidly changing. The mediator must understand the currents of\u00a0the law. Of equal importance is the emotional context in which the parties are trying to\u00a0make critically important decisions; it is a vortex of love, hate, passion, fear, grief, anger,\u00a0depression, confusion and anxiety.<\/p>\n

Mediators promise to deliver a process that will help the parties move on from all of this.\u00a0It promises free and genuine consent, true self-determination, true democratic\u00a0participation, a fair process, an impartial, skilled and committed mediator, cooperative\u00a0problem-solving and san end result that does not harm the parties or their children.<\/p>\n

Practising their craft with these four principles in mind will help them keep their promise.<\/p>\n

 <\/p>\n

 <\/p>\n

Excerpt from:\u00a0Linton, Hilary. \u201cPractical Guidelines for Comprehensive Family Mediation.\u201d (2003): 1-17.\u00a0<\/strong><\/h5>\n
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[25] Morris, FN 2, p. 340<\/p>\n

[26] It is suggested that all family mediators should complete a Myers-Briggs personality typing process to\u00a0help them answer these questions about themselves, and therefore direct themselves in their practices.<\/p>\n

[27 ]This covenant will require thought; the agreement should define \u201clying\u201d. Gerald Wetlaufer in \u201cThe\u00a0Ethics of Lying in Negotiations\u201d(1990)765 Iowa Law Review 1218, defines lying as \u201call means by which\u00a0one might attempt to create in some audience a belief at variance with one\u2019s own\u201d, at p. 1223. Given that\u00a0there is a distributive element to the mediation process, lying can be seen by parties to mediation as an\u00a0effective strategy. It is therefore essential that mediation contracts be based on the premise that \u201cfull and\u00a0truthful disclosure is the key to identifying and exploiting opportunities for integrative bargaining\u201d, (p.1228) and that the parties and mediator all promise to each other to mediate in the spirit of candid and full honesty in order to fulfill the objectives of the process.<\/p>\n

[28] For more on the issue of reciprocal solicitor-client obligations, see Wilkins and Menkel-Meadow FN 23.<\/p>\n

[29] Menkel-Meadow , FN1, asserts that mediation invariably involves elements of the practice of law among\u00a0many practices, because of the application of legal skill and judgement to fact situations. (p. 424) This is\u00a0undeniably a part of a comprehensive mediator\u2019s role. See also Carrie Menkel-Meadow, \u201cIs Mediation the\u00a0Practice of Law?\u201d (1996) 14 Alternatives to High Cost Litig. 57. This journal is premised on the argument\u00a0that comprehensive family mediation must, if it is to be done in a way that lives up to its promise, include\u00a0\u201cthe practice of law\u201d.<\/p>\n

[30] Cloke, FN 4, p.13.<\/p>\n

[31] Ibid, p. 14<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In this part 4 of this blog series, Hilary sets out four practical\u00a0ethical \u201crules\u201d which should be considered in mediation\u00a0practice Four suggestions Given the unique vulnerability of family mediation clients, and taking what exists already\u00a0in the form of codes of conduct for family mediators, the following is a set of practical\u00a0ethical \u201crules\u201d which should, in my view, be the minimum …
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