Report to Supreme Court on Family Mediation

The following is the text of a report of our study group on recommendations made by the Missouri Supreme Court ADR Commission for revisions to court rules for mediation of domestic relations disputes. The report was submitted to the Judge Teitelman on March 5, 2007.

The Association of Missouri Mediators, a statewide non-profit organization mediators and advocates promoting professional mediation practice in our state, thanks the Supreme Court for its interest in exploring the use of mediation as an effective dispute resolution process in domestic relations disputes. The work and recommendations of the ADR Commission appointed by the Court has been of particular interest because family mediators render services most often in conjunction with court proceedings. We are aware that much time and thought was poured into the Commission’s work. Judge Teitleman has graciously spoken to our organization on several occasions and invited us to comment on the pending recommendations.
A study group was formed and during the month of February 2007, we invited members to comment in eight areas of particular interest to family mediators that may significantly impact the practice of family mediators in the state of Missouri. Responses were gathered from detailed survey questions, several mini surveys and a teleconference of members hosted by the study group. (See appendix A for the survey questions).

Comments, suggestions, and concerns of our membership in three areas are outlined below. We applaud the attention of the Supreme Court to best practices for court-connected mediation. The interest of the Supreme Court in the views of a wider cross-section of the community of mediation practitioners is much appreciated. Our Association is willing to render any technical assistance the Court may find helpful.
Section 1: Education and Training Requirements for Family Mediators

A. Basic Educational Level:

Supreme Court Rule 88.05 presently requires family mediators to have a juris doctorate or a graduate degree in a field that includes the study of psychiatry, psychology, social work, counseling or other behavioral science substantially related to marriage and family interpersonal relationships. The proposed Rule 17.11 changes the level of formal education to a bachelors degree from an accredited institution.

Eighty percent of the Association’s members responding to our informal survey agreed that a bachelor’s degree was sufficient as basic formal education requirement for mediators. Another twenty percent felt that the present requirement of a master’s or law degree should be maintained.

All respondents endorsed the recommendation in proposed Rule 17.11 setting standards to the substantive content of core mediation training. All respondents asserted that role-playing should be an integral part of core training. Role playing is part of national standards for family mediator training. The training standards developed by the Academy of Family Mediators, now merged with the Association for Conflict Resolution, have been used by several popular trainers in Missouri for over fifteen years (see appendix).

B. Domestic Violence and Mediation

Dispute resolution professionals are concerned about the appropriateness of mediation when domestic violence issues create dynamics of fear, intimidation and coercion that undermine self-determination. (See the excellent article by Alexandria Zylstra, “Mediation and Domestic Violence: A Practical Screening Method for Mediators and Mediation Program Administrators,” Journal of Dispute Resolution, Vol. 2001, No. 2 at 253). Members responding to our informal survey were divided on whether mediation should be ordered in cases with a history of domestic violence. Most members have serious reservations about court rules that mandate mediation for all cases, especially those brought under R.S. Mo Chapter 455. One-third of our respondents indicated that mediation should not be ordered in such cases, while 67 % of those responding were receptive to authorizing mediation in such cases with appropriate safeguards.

An overwhelming 85% of Association members responding to our survey agreed that the mediator should have special training to handle a case with a history of domestic violence. M.A.R.C.H. Inc., a statewide non-profit provider of domestic relations mediation in Missouri, has required special training for mediators who handle cases with a history of domestic violence since 2000. The domestic violence issue should be addressed in core family mediator training requirements and in continuing education. We do not believe that a grandfather exception should relieve any mediator handling cases with a history of domestic violence from the obligation to receive training on domestic violence issues in mediation.

C. Cross Training Requirement

Supreme Court Rule 88.05 presently requires family mediators to have at least 20 hours of child custody mediation training in a program approved by the Court.The proposal for Rule 17.11 requires a minimum of 40 hours of core mediation training and 8 hours of specific “cross training” in the law and/or behavioral science fields. Association members responding to our informal survey were evenly divided on whether eight hours of cross training was sufficient. Those in favor of more cross training stated that 12 hours was more appropriate in light of a basic educational requirement of a bachelor’s degree. Most respondents agreed that cross training should include role-playing where appropriate.

All respondents also agreed that trainers should have mediation experience and instructional skills. Mediation experience is considered fundamental for trainers understanding of issues and for conveying information of a practical nature in cross-training. Certification of trainers was not deemed crucial, though documentation of mediation experience and instructional skills was stressed.

D. Continuing Education Requirement

Rule 88 does not presently require continuing education for mediators. The proposal for Rule 17.11 requires 6 hours of continuing education in fields related to ADR services or behavioral sciences that are applicable and relevant to issues of child and family development and psychology. All respondents agreed that six hours of annual continuing education was appropriate, and unanimously recommended that self-study (reading, video viewing, etc) be permitted for some continuing education hours. Eighty percent of our respondents also suggested that some of the continuing education hours should involved mediation skills. It is also recommended that non-attorney mediators have the option to obtain continuing education hours in family law.

Section 2: Family Mediator List and Complaint Process

A. Statewide Family Mediator List

The proposal for Rule 17.11 recommends that judges only be allowed to appoint mediators from an approved list maintained by the Office of State Court Administrator. Survey respondents recommended that any staff person assessing the qualification of mediators registering on the list should also meet the requirements to be a court approved mediator. The responses were equally divided regarding the fee for registration between no fee, a fee to cover costs only, and a fee not to exceed $45 per year (cost of AMM membership). All respondents saw a need for wide dissemination of the list. Ideas included: annual publication of the list, distribution to court clerks, judges, libraries; public posting at the courthouse; web listing. Respondents reported that establishing this list would create confusion with a two list system – the OSCA list for domestic relations mediators and the MOBar Rule 17 list for all other dispute resolution professionals. Some respondents suggested that a mediator on the OSCA list be allowed to advertise as a “court qualified mediator.”


B. Complaint Process

While the family mediator list maintain by OSCA will be a statewide effort, the ADR Commission has recommended that each circuit establish a complaint process for handling complaints about mediator services. Respondents whole heartedly prefer a statewide complaint process and expressed concern that locally controlled complaint procedures will politicize the mediator registration process and may create a perception of cronyism. Respondents agreed that the personnel administering the mediator complaint process should be experienced mediators who also meet the court qualifications. There were reservations that competent and knowledgeable resources exist at the local level throughout the state to shoulder the responsibility for complaint processing.

The goals of a complaint process for those receiving family mediation services should be fairness to all involved, to give complaints (perceived or actual) a means of redress, and to provide the mediator with an opportunity for input in response to the complaint. The mediator should be informed that a complaint has been made and the content of the complaint. The mediator should have an opportunity to be heard, either by discussing it with the reviewer and/or an opportunity to dialogue with the complainant. Several respondents recommended that the process should resemble “a good mediation.” One respondent endorsed the Missouri Bar fee dispute resolution program as a good complaint program model. Another suggested that the Association for Conflict Resolution has recommendations for complaint procedures that can serve as a model.

To publicize the complaint process, it was recommended that a brochure be published and given to mediation clients explaining the hallmarks of a good mediation process, qualifications of mediators and where to complain. Publication in court rules and on a website were also suggested. One respondent asserted that there should be no discipline of mediators without licensure. Others stated that consequences for a well-founded complaint should range from requiring further training, providing a mentoring process, and as a final resort, suspension then removal from the list.

Section 3: Practice Issues

A. Standards for Family Mediators

The ADR Commission has proposed the adoption of standards of practice for family mediators. The standards recommended differ substantially from the model standards adopted by national ADR organizations, which are also aspirational in nature. The Association of Missouri Mediators has adopted national general practice standards for mediators that hold mediators responsible for complying with best practices in the profession (see appendix). Members were resolute that standards for family mediators in Missouri should not conflict with national standards. A multi-year collaboration between the American Bar Association Family Law Section, the Association for Conflict Resolution and the Association of Family and Conciliation Courts have created thoughtfully prepared standards of practice for mediation in general and for family mediation that have been widely adopted (including a least one court-connected program in Missouri). Respondents agreed that Missouri should adopt the national standards for family mediators (see appendix).

B. Best Practices in Cases with a History of Domestic Violence

The proposed rule 17.09 will expand the use of mediation to additional sections of the revised statutes. In additional the Commission report endorsed a change to R.S. Mo § 452.375 that would delete the good cause exemption from an order of mediation based on domestic violence. Domestic violence, while a concern in dissolution and custody disputes, is a heightened concern under Chapter 455. Mediators are troubled about the appropriateness of mediation when domestic violence issues create dynamics of fear, intimidation and coercion that undermine self-determination or the ability to advocate for the best interest of children. The National Council of Juvenile and Family Court Judges has developed a model code on mediation in cases of domestic and family violence that is worthy of consideration (see appendix),

Family mediators in general do not favor across-the-board mandatory mediation orders or rules that do not allow an opt-out provision for cases with a history of domestic violence. This was confirmed by response to our survey. Concern was expressed about the provision in proposed Rule 17.13 that would limit the power of parties to terminate mediation when “otherwise ordered by the court.” Respondents commented that judges are not informed about the concerns that domestic violence poses for family mediation. We urge the Judicial College to require training for judges who make mediation referrals on the effect of domestic violence dynamics in mediation.

Complex issues that surround mediation with a domestic violence component should be addressed in mediation process protocols, rules regarding family mediators’ duties, and family mediation standards. Respondents felt that the mediator has the ultimate responsibility to determine if mediation is appropriate based on considerations for participant safety and intimidation. Respondents also asserted tat the initial screening of cases for domestic violence is a part of the mediator’s services and should be acknowledged for purposes of compensation. M.A.R.C.H. Inc., a statewide non-profit provider of domestic relations mediation, has established policies for screening and mediating cases with a history of domestic violence. Members also pointed out that screening protocols have been adopted in many other states, specifically mentioning Florida, Maine, Michigan and Texas. Safeguards that members espouse for holding mediation in cases with a domestic violence component include: initial screening of all cases for domestic violence, co-mediation by male/female mediators, use of the caucus model, security measures such as staggered arrivals and departures, the presence of an advocate or support person; separate initial meetings to develop a safety plan; and making referrals to community resources.

C. Mediator Fees

Court connected mediation programs have used various methods in the past to make mediation available: volunteers, services paid through grant funds, services in exchange for training, contractual services, and sliding scale fees. Domestic relations mediation is complex and intense work. It requires commitment to obtain the training and skills necessary to provide valuable services. AMM promotes the delivery of mediation by trained professionals who should be adequately compensated for their services. Many mediators are professionals who charge their professional rate in their mediation practice. Our informal survey of our members indicated that the “reasonable” fee varied around the state from a base rate of $100 per hour to $250 per hour or more depending on mediator experience. The time a mediator spends in screening a case to determine whether mediation is appropriate is an integral part of the mediator’s services. Mediators should be compensated for time spent in the initial preparation for mediation, especially in cases where screening disqualified a case as inappropriate (for example, when a party does not possess the ability to negotiate effectively due to fear for safety or intimidation). Compensation for time spent performing screening is important for supporting the quality and professionalism of mediation.

Although the judicial system is starting to embrace mediation as an important component in an integrated dispute resolution system that includes litigation and other processes, to date few courts have respected the profession by way of compensation. Court connected programs that rely on volunteers or subsidy of fees by mediators (some receiving as little as $15 per hour on a sliding fee scale) will become increasingly unable to attract dedicated and qualified dispute resolution professionals. Judges should have the authority to direct payment of reasonable mediator fees when ordering parties into mediation, including deposit of fees into the registry of the court and assessment of fees as costs of court.

Thank you for the opportunity to comment on these issues affecting family mediation practitioners.

Most respectfully yours,
The Association of Missouri Mediators, Inc.