Family Law Mediation Explained
Family law mediation is an alternative dispute resolution process that allows parties to resolve issues in their family law case without the need to go to trial. The mediator is a neutral, independent person who is trained to address the issues you face and help you and the opposing party come to an agreement. The goal of mediation is to reach a resolution as opposed to forcing one party to lose at trial. Family law mediation is becoming even more common and is even required by many courts before a case can go to trial. For example , in Maryland, all counties in the state require mediation in any case where there is a contested matter related to child custody, access, or visitation. Many other states also require mediation in contested family law matters.
Crucial Competencies of a Family Law Mediator
Navigating the dynamics of human relationships, especially those marked by emotional turmoil, is at the heart of family law mediation. Because the stakes are often high—both legally and personally—the skills that separate a successful family law mediator from a less-than-effective one include, but aren’t limited to:
Communication
Communication is obvious. A mediator must communicate effectively with all parties to the mediation. This means that a mediator must possess excellent listening skills. Merriam-Webster defines listening as: "to pay attention to sound." A trained family law mediator not only pays attention to sound, he or she also hears and processes the message behind the words. A family law mediator is an advocate for nothing more than due process.
To ensure that his or her communications are received as intended, a mediator must also be aware of his or her body language as well as the body language of the parties involved. Even in situations where emotions may run high, a trained mediator can promote a more peaceful environment by paying attention to and regulating his or her own body language. A competent family law mediator is in command of body language and uses it to foster an atmosphere where feelings and thoughts can be expressed with respect and dignity.
Neutrality
Mutual distrust is common in family law matters. If even one of the parties to a family law mediation believes the mediator to be biased in any way, the meaner the proposed deal will be for him or her. It is not enough for a family law mediator to be impartial in matters of law; he or she must also present a neutral persona, even in the face of extreme emotion. A family law mediator who cannot intuit when a party is struggling to accept an idea will have greater difficulty proposing a solution that will be accepted by that party. A good family law mediator will not only recognize when emotions threaten to interfere, he or she will recognize when it’s appropriate to address those feelings as opposed to moving forward with the legal issues at stake.
Empathy
"Paying attention to sound" does not mean a mediator actually hears the meanings behind the words his or her clients say. At its core, the ability to empathize means to read between the lines, to discern the emotions that lie just beneath the surface words being spoken. When approaching mediation, an experienced family law mediator has the foresight to know that the parties will likely feel grief, anger, resentment, fear, anxiety, even joy. The key is to help his or her clients identify and address those feelings rather than allowing emotions to completely sidetrack the process (and those issues inevitably do exist, if only for a moment).
Legal Knowledge
Sound legal advice is essential for any family law mediation. Each state has laws that dictate matters such as custodial rights, marital property division, and temporary financial support during the divorce process. In many states, a non-attorney who mediates family law cases is blind to these relevant legal issues and has no way of advising his or her clients beyond urging them to consult an experienced family law attorney elsewhere. This practice has been deemed unlicensed "practice of law" in many jurisdictions and could expose the mediator to severe disciplinary sanctions. An experienced family law mediator has a sound grasp of the applicable laws in a given jurisdiction and can advise his or her mediating clients on how the law would apply to their specific circumstances.
In-Depth Analysis of Mediation Training for Lawyers
Typically, mediation or family law dispute resolution training programs range from 40 hours to several hundred hours, depending on the style of program you will be pursuing. In Georgia, mediation rules require a minimum number of hours of training related to the type of dispute that will be mediated. While rules vary by state, many of the programs follow a uniform guideline that makes it easy for you to understand whether you want to pursue certification in your state. For example, in Georgia, in order to be certified as a mediator we must complete 40 hours of basic mediator training plus 20 hours of domestic mediation training. If you mediate cases without children, such as cases involving modification of support orders, you are not required to complete the additional domestic mediation training. Larger programs will include training and certifications for other forms of dispute resolution such as, arbitration, neutral evaluation and settlement facilitation. Many programs offer advanced training opportunities that will set you apart from those who have only taken the basic training course. Do your research to find a program that is best suited to your needs. Meet with trainers face to face or via phone prior to the training to ensure you will receive adequate training for your proposed area of practice. Be sure to get the information on any additional fees or costs before you arrive for the training.
Ethical Guidelines and Legal Framework for Family Mediation
As with any professional engagement, mediators must be aware of the legal boundaries that frame family law mediation – this is especially important as we continue to see courts endorse mediation as a positive adjunct to court bound family law disputes.
Internationally, country specific legislation and/or codes of conduct govern the role of the mediator. In Australia, section 10J of the Family Law Act 1975 provides:
1. In this subdivision:
(a) family dispute resolution means a process of resolving a dispute between, or relating to, 2 or more members of a family (the family) through discussions between them and a family dispute resolution practitioner;
(b) family dispute resolution law means the law relating to family dispute resolution set out in sections 10F to 10HA, section 60I and subsection 117(2) (see the Dictionary);
(c) qualified, in relation to family dispute resolution services, has a meaning affected by section 10H.
2. In this subdivision, references to a dispute between 2 or more members of a family include references to a dispute in which a child is also involved, but do not include references to a dispute in which no member of the family is involved.
It is also necessary to refer to Part 2A of the Federal Court of Australia Act 1976 which provides the legal basis for the appointment of mediators by that court to conduct mediation.
In South Australia, pursuant to the new Courts Administration Act which commenced operation on 1 July 2015, all civil Courts including the Family Court of Australia (SA) and Supreme Court of South Australia have the power to appoint mediators. Section 62 of the Courts Administration Act states:
- (1) A court may refer a proceeding that is before it, or that a party to a proceeding has indicated is to be before it shortly, to mediation by an appropriate person if satisfied that the referral will assist the expeditious hearing of the proceeding.
- (2) A mediation of a proceeding must be conducted by a mediator that the court selects.
- (3) If the court considers that a mediation will assist the expeditious hearing of a proceeding , the court may, by order, refer any or all of the parties to the proceeding to mediation.
- (4) A mediator may be—
(a) an independent person selected by the court; or
(b) an officer or member of the staff of the judicial centre of the court who is appropriately qualified.
An important adjunct to the provisions above are the ethical considerations which must underpin the mediation process. There is the 2002 Model Standards for Family and Divorce Mediation developed by the Association for Conflict Resolution in the United States of America, the 1990 Standards of Practice for Family and Divorce Mediation by the Family Mediation Canada as well as the 2013 Guidelines for Family Dispute Resolution Practitioners issued by the Australian Institute of Family Lawyers and Counsellors. Each of these is aimed at assisting family mediators to engage in professional practice that is within the ethical and legal confines of their roles. For example standards include:
- Clear communications with clients before commencement of the process as to the role of the mediator and the difference between mediation and other dispute resolution services including the role of appraisers, valuers and accountants that may assist the mediation process
- Maintaining impartiality
- Whilst honouring confidentiality (except in limited circumstances including suspected child abuse or harm to person or property), the mediator is required to disclose information where disclosure is needed to protect the mediator’s own interests in circumstances where there is a complaint about mediation or to supply information requested from local or overseas courts
- Accepting a mediation where the mediator is qualified by education, training, experience or expertise to undertake mediation of the family matter, including screening for suitability as an alternative dispute resolution service
- Requiring parties/members of the family to sign a mediation agreement that specifies the conditions under which mediation will take place.
Advantages of Family Law Mediation Training
Investing in family law mediation training offers a multitude of advantages for those involved in the profession. For legal practitioners, mediators, and other professionals within the field, such training can present a gateway into new career opportunities. The demand for trained professional mediators continues to grow as families and individuals seek cost-effective, less contentious means of resolving legal disputes, particularly in family law matters.
Moreover, the training not only helps hone the technical skills necessary to guide mediation between two or more parties, but it also cultivates essential soft skills such as empathy, active listening, and effective communication. The mediator serves as a neutral party committed to facilitating understanding and closure, and this role requires more than just knowledge of the law. A skilled mediator must be able to earn the trust of those involved and keep the discussion focused in the midst of sensitive and often emotional topics.
Taking part in family law mediation training is equally rewarding for legal professionals who may be tasked with representing clients at mediation. Lawyers with sound knowledge of the mediation process and dynamics can help their clients navigate the mediation process and make the best settlement decision possible. This, too, is a huge benefit for everyone involved, as it minimizes the need for litigation, saves time, and lowers associated costs.
The positive sum effects of choosing mediation over litigation cannot be understated. Mediation saves families considerable sums of money, reduces the stress of lawsuits, and fosters greater understanding among parties. Therefore, whether an individual pursues a career as a mediator or he or she acts solely as a family lawyer, taking the time to undergo a comprehensive course on mediation can certainly pay dividends.
Opportunities and Challenges in Family Law Mediation
As with any profession, there are challenges to being a family law mediator that can add complexity to the process. However, by recognizing these roadblocks, practitioners can adapt and overcome and actually move forward faster in their mediation careers. Family law litigants have a vast range of experience, knowledge, and thought processes. For a new family law mediator or an old pro, each new case can introduce novel twists and turns. This is the very reason it is so important in the early days of mediation education to find a mentor. At MediationMentors.com family law mediators and others will find not only great material to help them through the early days but access to a large number of experienced mediators who can serve as mentors.
Word-of-mouth is the best advertising for a family law mediator, and they also need to penetrate the network of lawyers and others – including friends and family – who may need a family law mediator . This is a challenge that is unique to family law mediators. Unlike many commercial mediators, family law mediators serve in every county, and not just in their local area.
A well-constructed family law mediation training will address these issues, preparing new mediators for the pitfalls and opportunities to be found in the profession. A good family law mediation training will provide materials that are clear. Research is cited so that the new family law mediator has valid work when they take the plunge into the real world. When the new family law mediator asks questions of their mentor, they will have the materials available to use and learn from right away so that they do not forget the question or answer before they can connect with their mentor. Over time, they will accumulate a list of frequently asked questions that can evolve into a full-fledged resource guide.