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Mediation for Civil and Family Law Practitioners

“There must be a better way.” As litigation attorneys, after a day of battle in court with two sides slogging it out and going for blood, we sometimes mutter that to ourselves, as our client does, or scream it to the heavens.

After years of seeing the unfortunate byproducts of litigation and its impact on clients, families and others, some lawyers yearn for a different dispute resolution model, one that is peaceful, respectful, collaborative, cooperative and civilized. Some of us are quietly searching for that “better way” but do not know where to begin.

That better way for you and your clients may be alternative dispute resolution (ADR). There are a number of forms of ADR, such as mediation, collaborative law, private arbitration, cooperative law, amicable divorce and others. This article will address mediation as a “better way.”

Mediation as the alternative method of resolution

Here are some things you should know if you have decided to explore the mediation model as either another tool in your toolbox or to transition toward ADR and away from litigation.

First, a mediator does not need to be an attorney. There are skilled mediators who are therapists and other professionals with experience in a host of disciplines who assist people with disputes in those practice areas. For example, a professional with many years of experience in working with the postal service may become a mediator who hears disputes between the U.S. Postal Service and its employees. The same is true with people who have substantial human resource experience, who serve as mediators with the Pennsylvania Human Relations Commission or the Public Utility Commission, for example.

But having that subject-matter knowledge is not always enough. Having knowledge of the law in an area of mediation makes lawyers ideal mediators.

What is the value of mediation and how does it differ from litigation?

People are generally attracted to mediation because they want to avoid the conflict and acrimony of litigation for themselves and the parties involved. Here are several key differences:

• Parties in mediation see the value in developing the resolution of their dispute themselves. Parties who jointly discuss and resolve their disputes themselves are more likely to abide by their negotiated result.
• Parties who mediate are more likely to be successful in engaging in meaningful discussions after the conclusion of their matter. This feature and end-product of mediation is a critical and often unknown benefit. Some parties will resolve their dispute and never interact again. For example, mediators are used by attorneys concentrating in catastrophic personal injury. The injured plaintiff and the other party will resolve the claim and likely not interact in the future.
  However, in the child custody world, mediators are utilized outside of court to assist parents in arriving at a parenting plan and custody order. Different from the personal injury mediation model, in custody mediation, once an agreement is reached, these parties will interact for the remainder of their child’s life. There will be christenings, bar and bat mitzvahs, birthdays, graduations, weddings and the like. One of the benefits of child custody mediation is that parents are more likely to remain amicable and communicative, as they were during the mediation process. That is a natural and wonderful by-product.

• Mediation is designed to be a peaceful and respectful process. Litigation is results oriented while mediation is needs oriented.

What is the difference between “results” and “needs”?

In a results model, the goal is to win. A party fights to obtain as much as possible, many times to the detriment of the other party. Once the process is over, further communication between the parties can be acrimonious and difficult, as a product of the litigation process being acrimonious and difficult. In litigation, there are times when neither party feels validated or “heard.” Neither party is happy.

In a needs model, both parties in a mediation communicate their needs to the other party, and a skilled mediator will assist the parties in reaching the best solution to address those needs. Neither party gets all they want in a mediation. Rather, both parties achieve a result that is good for both of them, and their family.

There are other benefits of mediation over litigation:

• Quicker: Mediation is generally a much more expedient process than litigation. For example, it isn’t uncommon for a litigated divorce or civil matter to take two or more years to conclude. Many times, a mediated divorce or civil matter can be resolved in under six months if the parties continue to move the matter to conclusion.
• Less costly: In litigation, performed on an hourly basis, both parties retain their own lawyers. If financial experts are needed, parties will each engage their own and incur those fees. If there are other experts needed, they will need to be retained and paid. But in many mediations, the parties are paying the mediator and no one else. Parties in mediation are certainly permitted to engage their own lawyers to advise them during the process, but this does not happen in all mediations and is not a requirement. Because the period for mediation is shorter than litigation and parties are not paying for individual experts, the costs of mediation can be far less than litigation.
• Voluntary: Litigation is an involuntary process. Parties do not consent to litigation: One party begins the process, and the other party is compelled to participate. Mediation is a voluntary process. Both parties need to consent to the mediation and remove the threat of litigation from the discussion. Parties need to be educated early in the mediation process that using litigation as a threat is counterintuitive and inappropriate. When a mediator is initially contacted by a party seeking information about mediation, an early question is: Have you spoken with the other party about mediation? Without the consent of both parties, there is no mediation.
• Impartiality: The mediator must remain impartial and “take off the litigation hat.” As attorneys, we are trained to represent and advocate for one party. We practice and hone that skill. Conversely, there is no advocacy by the mediator during the mediation process. Litigators are trained to counsel their clients as to what the best outcome for them is. Not so in mediation. Mediators are impartial. Removing this “litigation hat” can be challenging and takes practice and training.
• Order and pace: In mediation, the parties decide the order in which issues are discussed and the pace of the process: The first question asked by the mediator at the initial mediation session is “What issue do you want to begin with?” One of the beauties of mediation is the parties’ control of the process. Parties therefore begin to feel that they own the process. Parties who feel they own the process and arrive at their own resolution feel empowered and confident in the result.
• Control of the process: In litigation, the judge controls the process as well as the outcome. Parties in mediation are more likely to approve a resolution they construct, rather than one ordered by a judge or arbitrator. A common complaint of parties who have begun the litigation process but wish to switch to mediation is “I was in court last week, and the judge wouldn’t let me/us speak. The judge said only the lawyers can speak.” In mediation, the parties do the speaking; the mediator asks questions and provides alternatives.
• Confidentiality: Mediation is completely confidential. In a traditional open courtroom in Pennsylvania, a litigated matter is for all to see. But there are cases where the parties prefer privacy, and they don’t want their family business aired in an open courtroom setting. There can be certain facts that violate the law, that would besmirch a person or family’s reputation or that the parties wish would remain confidential. Mediation is the perfect venue for dispute resolution; it is totally private. The discussions between the parties are confidential and “don’t leave the room.” Mediation, in some offices, is strictly a three-way process; the two parties and the mediator are the only people in the room. In other mediator’s offices, attorneys and clients are permitted in the mediation session together. It is important that the mediator describe the process in the initial meeting with the participants.

Model Standards and Statutory Provisions

There is one set of uniformly accepted Model Standards for Mediators in Pennsylvania, and several statutory mediation standards.

1. Model Standards of Conduct for Mediators

The Model Standards of Conduct for Mediators (Model Standards) was prepared in 1994 by the American Arbitration Association, the American Bar Association Section of Dispute Resolution and the Association of Conflict Resolution. A joint committee of these entities revised these standards in 2005. Both the original 1994 version and the 2005 revision were approved by all three organizations and serve as the gold standard in mediation practice. The Pennsylvania Council of Mediators endorses these model standards for mediation practice in Pennsylvania, and they are used as a guideline for mediators.

Highlights of the Model Standards are:

1. Self-Determination: Parties come into mediation voluntarily and make uncoerced decisions based on free and informed choices as to process and outcome. While a mediator cannot ensure that each party has made free and informed choices to reach a particular decision, a mediator, in the appropriate case, should make the parties aware of the importance of consulting other professionals to help them make informed choices.
2. Impartiality: A mediator is obligated to decline serving as a mediator in a matter if the mediator cannot be or remain impartial. If at any time a mediator is unable to conduct a mediation impartially, he or she is obligated to withdraw.
3. Conflicts of Interest: A mediator must avoid conflicts of interest or the appearance of conflict of interest, during or after a mediation. A conflict of interest can arise from involvement by a mediator with either the subject matter of the dispute or a relationship with a participant, whether past or present.
   A mediator needs to disclose all actual or potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. Once disclosed, if all parties agree, the mediator may proceed with the mediation. Subsequent to the mediation process, the mediator cannot establish a relationship with a party or third party that would raise questions as to the integrity of the mediation.
   Author’s Note: If the mediation process is not successful, the mediator is conflicted out of representing either party going forward. This is because the mediator is aware of information from both parties of the mediated matter, and as such, can never represent one party going forward.
   
4. Competence and training: Mediator competence requires training, mediation experience and skill, cultural understanding and other qualities. A person who offers to serve as a mediator creates the expectation that he or she is competent to mediate effectively. A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.
   Author’s note: A mediator should continue to take advanced training to refine and enhance his or her skills as a mediator.
5. Domestic abuse or violence: If the mediator is aware of domestic abuse or violence among the parties, the mediator must take appropriate steps, including postponing, withdrawing from or terminating the mediation.
   Author’s note: This is very important. The presence of domestic violence or abuse history can impact the balance of power between the two parties. This unbalanced position of power can impact the ability of a party to make informed decisions as well as the freedom a party has to actively, effectively and fully participate.
6. Advertising and solicitation: Honest advertising concerning the mediator’s training, qualifications, service and fees is required. A mediator must not disclose through any form of communication the names of the parties in their present or past mediations without their permission.
7. Fees and other charges: Full disclosure of fees, expenses and other charges by the mediator is required. A mediator’s fee arrangement shall be in writing unless the parties request otherwise. A mediator shall not enter into a contingent fee arrangement.
8. Advancement of mediation practice: A mediator should act in a manner that advances the practice of mediation. The mediator should:
   i-Foster diversity within mediation.
   ii-Strive to make mediation accessible to those who wish to use it.
   iii-Participate in outreach and education to assist the public in developing an understanding of mediation; and
   iv-Assist newer mediators in training, mentoring and networking.

2. PA Rules of Civil Procedure, Chapter 1940

Chapter 1940 of the Pennsylvania Rules of Civil Procedure (Pa. R.C.P.) applies to voluntary mediation in custody actions.

These rules apply to court-established custody mediation programs and to any court-ordered mediation in individual custody cases. Certain counties in Pennsylvania have mandatory custody mediation by local rule, which generally takes place before any appearance in court.

Under Pa. R.C.P. 1940.2, mediation is defined as a confidential process by which a neutral mediator assists parties in attempting to reach a mutually acceptable agreement on issues arising in a custody action.

Mediation is a non-record proceeding in lieu of court involvement. Any agreement reached by the parties must be based on the voluntary decisions of the parties and not the mediator.

The agreement can resolve all of the issues in custody or some of the issues. There is no compulsion to reach an agreement. There is no attorney “in the room.” The participants are the parents or persons acting as parents and the mediator. Except as mentioned in this rule, nonparties do not participate in this process.

Author’s note: Note the words “persons acting as parents.” Persons other than parents can be raising a child, such as stepparents, grandparents, adoptive parents and other family members or other third parties the court recognizes as “parents.”

Should the parties reach agreement, most counties have the mediator draft the custody order for signature. Other counties have the mediator prepare a memorandum of understanding reflecting any agreement reached by the parties, and a custody officer or judge prepares the actual custody order. A memorandum of understanding is not legally binding until an order is signed by the parties and the court.

At any point during custody litigation in court, a party or both parties may request mediation. Once requested, the court can order that the parties attend an orientation session to learn about mediation or the court can do this on its own motion. An exception to this rule is when a child or a party has been subject to domestic violence or child abuse during the pendency of a custody matter or with 24 months preceding the filing of the custody action. In this case, mediation is generally not ordered.

Qualifications of the mediator

These are the qualifications of mediators under Rule 1940, dealing with court-sanctioned mediation.

1. A bachelor’s degree and practical experience in law, psychiatry, psychology, counseling, family therapy or other specified training.
2. Completion of basic training in domestic and family violence or child abuse as well as a divorce and custody mediation program approved by one of several listed entities.
3. Mediation professional liability insurance.
4. Additional mediation training consisting of a minimum of four mediated cases totaling 10 hours under mediator supervision.
5. The mediator must comply with the ethical standards of the mediator profession and complete at least 20 hours of continuing education every two years on topics related to family mediation.

Duties of the mediator

The mediator must inform the parties in writing of the costs and process of the mediation, the neutrality of the mediator and that the mediator does not represent either party, any potential conflict or bias and that the parties are free to seek legal advice from their own attorney. Also, when mediating a custody dispute, the mediator should ensure the parties are considering the best interests of the child. Further, with the consent of both parties, the mediator may meet with the subject child or invite third parties into the process.

Author’s note: There are several interesting issues discussed in the previous paragraph. It is important that the parties are aware that they can consult with their own attorney while in the mediation process. Not all parties feel the need to engage counsel. However, if a party wishes to obtain advice from a lawyer, the party is free to do so. The mediator does not represent either party and does not tell a party what is in the party’s best interest or how the party should proceed in mediation.

Also, the Pa. R.C.P. mentions inviting third parties into the process. This can occur when a party needs support in communication, for example, during the mediation sessions or if a party needs support in analyzing financial matters. The professionals are referred to as “neutrals” and work to support both parties and the process. They can be critical to the success of the mediation in some processes. This use of neutrals in mediation is a new and innovative method of helping to ensure the success of the process.

Transitioning to Mediation: Training

If mediation sounds interesting and exciting to you, training is the next step. Regardless of the subject area, what qualified mediators have in common before they begin their mediation work is formal mediation training. Many mediation-related organizations offer introductory courses of 24, 30 or 40 hours, depending on the entity providing the mediation. The Pennsylvania Council of Mediators regularly offers a 30-hour general introductory mediation training course.

Consider joining the Pennsylvania Council of Mediators (PCM), which offers more advanced training, and conferences where you can make connections. Members of PCM come from all disciplines using ADR and include people across Pennsylvania who have an interest in mediation. PCM monitors the legislative process in the commonwealth. It works with the Pennsylvania Bar Association and other like-minded organizations seeking to bring mediation into the mainstream of dispute resolution thinking.

The Association for Conflict Resolution (ACR) is an international organization of professionals whose goal is to enhance the practice and the public understanding of conflict resolution. Members of ACR include mediators, arbitrators and other conflict resolution professionals, including:

• Government employees who work as “neutrals”
• Mediators in schools who mediate between parents and school districts regarding the educational needs of children
• Custody mediators in a court setting
• Environmental mediators
• Specialists in resolving inter-agency governmental disputes
• Divorce mediators working with families

The list is endless. If you practice in a particular area of the law, there is likely a place for mediation in that area. The steps for those looking to make the transition to mediation are obtaining the training, joining an appropriate organization and obtaining experience.

Getting involved in the alternative dispute resolution committees of your county bar association and the Pennsylvania Bar Association is another way to make an impact in fostering mediation and an excellent way to meet other mediators.

Other ways to build a practice:

1. Referral Groups: Are they valuable? “It depends.” Joining a referral group and doing nothing more is likely to be of minimal value. Getting involved in your referral group can be valuable. There are a number of professional referral groups. Do your research, contact members and see what feels right.
2. Website and Search Engine Optimization: As we all know, the web is the Yellow Pages of our time. Putting a mediation page on your current website or creating a new website for your mediation practice is another way to get your name out to the public. Search Engine Optimization is another consideration and can be a valuable method for people to find you on the web.
3. Get the word out: Tell your colleagues and others you know that you are now doing mediation.

Mediation and alternative dispute resolution are exciting, wonderful ways to practice law. They are peaceful and respectful. It does not just happen though, and training is just the beginning.

Reach Out To Peaceful Mediation Today To Set Up Your First Session!

If you’re seeking a divorce and you believe mediation would be a better solution than litigation, Peaceful Mediation will guide you through a peaceful, constructive process. Our trained mediators remain neutral and listen to both you and your partner’s needs, prioritizing both of your best interests.

Contact us today to set up your first mediation session. We’re here to make this challenging time easier for you.