Your planning committee can draw on decades of court ADR experience and experimentation as you design or update your program. Much of this collected wisdom is reflected in standards of practice.
Standards of Practice
Standards fall into one of two categories: those that guide you in developing and conducting court ADR programs and those that guide neutrals. There is some overlap in family ADR because some standards for neutrals also include guidance for programs.
Even by rock star standards, I was pretty awful.
- Rod Stewart
Standards have been developed by U.S. and international groups addressing many aspects of ADR practice. These standards have been adapted and adopted by courts, professional organizations, ADR provider companies, individual neutrals and other entities. This guide addresses only national U.S. standards and guidelines.
You also will need to look for your own jurisdiction’s standards and rules to see what is in effect. Your jurisdiction may have used standards to design other court ADR programs or the program you are overhauling. Or you may have current court rules that require neutrals to follow a particular set of standards.
Note that standards are revised from time to time. Be sure you are working with the most up-to-date version of the standards, especially if your rules will require neutrals to perform their duties according to a set of standards.
Pitfalls to Avoid When Working With Standards
Something that is important to understand about standards is that these sets of standards are not enforceable until they are adopted by an entity with the power to enforce them. While some standards have been adopted by local entities, none are currently enforced on the national level. The Model Standards of Conduct for Mediators, for example, specifically state, “These Standards, unless and until adopted by a court or other regulatory authority do not have the force of law.” This means you can use the standards in many ways. For example, they can be a source of advice as you write your rules, you can require neutrals to agree to abide by them, or you can adapt the standards for neutrals into requirements for a grievance process.
This list of general standards, family program standards, and standards for neutrals may seem like an overwhelming group of standards, but there really is a limited number that will relate to your program. If you are doing mediation, start with the National Standards for Court-Connected Mediation Programs. From there, use whichever standards apply to your particular type of case. Whichever ADR process you are using, pick the appropriate standards for your neutrals. If you are working in family ADR, use the standards that relate to your chosen process, such as mediation or parenting coordination. Just be careful not to adopt them in whole without considering how they will play out in your setting.
Standards for Court ADR Generally
These are the standards you should start with. They provide detailed guidance for your program and the commentary for each standard helps explain why the standard is important. They were written in 1999 by the Center for Dispute Settlement in Washington, DC and the Institute of Judicial Administration in New York City, with support of the State Justice Institute. The Standards have held up well over time. Your planning committee can use the outline of the Standards as a checklist for ensuring you consider all the issues needed in program design or improvement:
- Access to mediation
- Court’s responsibility for mediation programs
- Selection of cases and timing of referral
- Mandatory attendance
- Qualification and selection of mediators
- Ethical standards for mediators
- The role of lawyers
- Inappropriate pressure to settle
- Communications between mediators and the court
- Funding of programs and compensation of mediators
- Mediators' liability
- The enforceability of mediated agreements
- Evaluation of programs
Don’t stop with the outline of the Court ADR Standards. The full text of the Standards identifies issues to consider and how they might be decided. They provide thoughtful guidance about balancing competing benefits of court ADR.
The guidelines for ADA mediations are not just useful for programs that specifically mediate disability-related matters. Alternatively, they also provide sound advice to all court ADR programs about how to ensure accessibility of court mediation and other ADR processes for people of all abilities and disabilities. Topics include training of staff and mediators, party capacity and additional mediation participants. Because any ADR program is likely to serve individuals with disabilities, it is advisable to review these standards and decide what to incorporate.
Standards for Particular Applications of Court ADR
There are four sets of standards related to family court ADR. The first two cover court programs – child protection mediation and brief focused assessment. The other two sets of standards are for neutrals serving families – mediators and parenting coordinators – whether in court programs or otherwise. These last two sets of standards each include an appendix with guidance to courts about how to administer these services.
All the standards discussed here for family ADR come from the Association of Family and Conciliation Courts (AFCC), a multi-disciplinary membership organization. AFCC is a leader in developing standards, educating stakeholders in their application and building multidisciplinary understanding among the various professionals serving families through the courts.
Guidelines for Child Protection Mediation
The Guidelines for Child Protection Mediation were developed by the Association of Family and Conciliation Courts in 2012. These guidelines define child protection mediation as “a collaborative problem solving process involving an impartial and neutral person who facilitates constructive negotiation and communication among parents, lawyers, child protection professionals, and possibly others, in an effort to reach a consensus regarding how to resolve issues of concern when children are alleged to be abused, neglected or abandoned.” The process values inclusion of the child’s voice either directly or by other means. No agreement is reached unless all the involved parties agree.
These Guidelines then go on to explain the principles of child protection mediation, the essentials of program design and operation, how to conduct child protection mediation and issues when doing so, and monitoring and evaluation. This is a very thorough guide for any stakeholder group that is planning to develop a child protection mediation program.
Guidelines for Brief Focused Assessment
The Guidelines for Brief Focused Assessment were developed by the Association of Family and Conciliation Courts in 2009. Brief Focused Assessments (BFAs) are a close cousin of child custody evaluations (CCEs), so these standards rely heavily on AFCC’s 2006 Model Standards of Practice for Child Custody Evaluation for such aspects of assessment as data gathering and report writing.
Both CCEs and BFAs are used to assist in better informing judicial decision-making. However, BFAs typically address different types of issues and phases of a family dispute and generally utilize a more descriptive approach versus the analytic mode used in conducting a CCE. BFA is the more appropriate when, for example, issues in dispute are narrowly defined. Sometimes either could be useful, but the BFA is ordered due to economic or institutional constraints. The Guidelines point out the importance of not using a BFA in place of a CCE simply to avoid the associated cost. This could create a two-tiered system in which low income families do not always receive the services they need.
Guidelines for Parenting Coordination, Appendix B, Best Judicial and Program Practices
The Guidelines for Parenting Coordination were developed by the Association of Family and Conciliation Courts in 2005. Parenting Coordination is a special ADR process for high conflict parents in which a mental health or legal professional mediates parents’ disputes, educates them about children’s needs, and makes decisions when the parents are unable to reach agreement. If you are developing or improving court parenting coordination program, the important part of these Guidelines is Appendix B, Best Judicial and Program Practices. The following is a list of items the committee should address, which are raised in the Appendix.
- Scope of Authority: Thoroughly research local law to determine what can and cannot be handled by a Parenting Coordinator (PC).
- Qualifications of Parenting Coordinators (PC): Establish a way to confirm the qualifications and training of PCs.
- Standard Order: Develop a standard order describing the legal authority, duties, and responsibilities of the PC, issues to be decided, fees, grievance process, and term of service.
- Reports to Court: Develop a process for the PC to send all recommendations, reports, and orders of decision to the court, as well as to each parent and any attorney.
- Parent Grievances and Objections: Establish clear procedures to handle parent grievances and objections to the PC’s recommendations.
Model Standards of Practice for Family and Divorce Mediation, Appendix
The Model Standards of Practice for Family and Divorce Mediation were developed in 2000 through a symposium on Standards of Practice convened by the Association of Family and Conciliation Courts. These Standards include an appendix, “Special Policy Considerations for State Regulation of Family Mediators and Court Affiliated Programs.” The appendix first recognizes the importance of the National Standards for Court-Connected Mediation. It goes on to make three additional recommendations.
- Jurisdictions should set standards and qualifications for family mediators that include procedures for evaluations and handling grievances against mediators.
- Jurisdictions should publicize the qualifications to be appointed as mediators and try to insure that each mediator is qualified.
- Jurisdictions should construe confidentiality to enable effective monitoring, research, evaluation or monitoring of mediation programs by responsible individuals or academic institutions.
Model Standards of Conduct for Mediators
The Model Standards of Conduct for Mediators were developed by the American Arbitration Association, the American Bar Association and the Association for Conflict Resolution and revised in 2005. These standards, which were originally drafted in 1994, form the basis for many of the other standards that have been written since then. Their audience is mediators, not program designers, but their requirements can form the base for program designers’ decisions about mediator behavior.
Model Standards of Practice for Family and Divorce Mediation
The Model Standards of Practice for Family and Divorce Mediation were developed in 2000 through a symposium on Standards of Practice convened by the Association of Family and Conciliation Courts. You will notice the similarity to the AAA/ABA/ACR Model Standards, but the family standards go further with respect to issues such as education of parties, screening parties and addressing domestic violence.
Guidelines for Parenting Coordination
The Guidelines for Parenting Coordination were developed by the Association of Family and Conciliation Courts in 2005. Parenting Coordination is a special ADR process just for high conflict parents. In Parenting Coordination, a mental health or legal professional helps high conflict parents by mediating their disputes, educating parents about children’s needs, and making decisions when the parents are unable to reach agreement.
Model Standards of Practice for Child Custody Evaluation
The Model Standards of Practice for Child Custody Evaluation were developed by the Association of Family and Conciliation Courts in 2006. You will notice that they are very different from the mediation standards. For example, they address issues such as data gathering, use of formal assessment instruments, and presentation and interpretation of data.
Most arbitrator standards are not written with court arbitration in mind. They are written for the vast majority of arbitrations that arise under contracts requiring arbitration – not litigation – when disputes develop. Court arbitration programs are relatively rare and there are no national arbitrator standards that guide court arbitrators. If you want to develop a court arbitration program, you will want to look at state and federal rules.
In court ADR, we are fortunate to have many well-written standards available that provide in-depth guidance to our field. Seek out the standards that are most appropriate to your program and they will provide a wealth of information.