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Email: appellateclerk@kscourts.org


Rules Adopted by the Supreme Court

Court Rules Relating to Mediation

Rule
Court Rules Relating to Mediation

Appendix

Kansas Standards of Practice for Lawyer
Mediators in Family Disputes
Introductory Comments by the Family Law Advisory Committee


In the past three years, the Family Law Advisory Committee (FLAC) of the Kansas Judicial Council has been studying ethical standards for attorneys doing mediation of family disputes. Because there was no uniformly recognized standards at the time FLAC began its study, the Committee began drafting its own standards. However, in August of 1984, the American Bar Association's House of Delegates approved a set of standards for lawyers acting as mediators in family disputes. Although many members of FLAC preferred the FLAC standards, it was the consensus of the Committee that FLAC should adopt the ABA Standards, unless there was substantial disagreement with the ABA Standards. The Committee members reached this decision because they believed that general uniformity and the interpretation of the ABA Standards in other jurisdictions could assist Kansas in implementing the Standards.

To a great extent, FLAC has retained the ABA Standards as the ABA adopted them. However, there is one ABA position with which FLAC substantially disagrees. The members of FLAC disagree with the ABA's prohibition against a mediator acting as an attorney for either party after the mediation. Under the ABA prohibition an attorney-mediator, who mediated with a couple involved in a child custody dispute, could not be hired as an attorney by the father five years later to represent the father in a workmen's compensation case. According to the ABA, the reason for this prohibition is the protection of the neutrality of the mediation process. For example, if an attorney-mediator mediated a divorce between a professional spouse and a homemaker and after the mediation, the professional spouse hired the mediator as an attorney, the homemaker may question whether the mediator favored the professional spouse during mediation in the hopes of obtaining future legal retainers.

The members of FLAC, however, rejected the ABA position as too restrictive, particularly in rural areas. For example, a total prohibition against later representation would mean that attorneys in rural Kansas would not act as mediators because they would lose the parties as future legal clients. Consequently, FLAC adopted a less restrictive alternative by limiting later representation to those matters that are clearly distinct from the mediated issues. Although this position does not protect the public to the same extent as the ABA prohibition, FLAC believed that attorneys are accustomed to making decisions concerning conflicts of interest and attorneys should be trusted to distinguish those issues that are clearly distinct from the mediated issues. Attorneys can also seek advice from the KBA Ethics Advisory Committee if they are uncertain about whether the later representation of a mediation client is distinct from the mediation issues.

Besides these areas of disagreement, there are other FLAC amendments to the ABA Standards. However, these changes are not intended to substantially change the ABA Standards, but rather are seen as improvements and clarifications of the original proposal. Also, FLAC views these Standards as compatible with the statutory duties of an attorney-mediator who does court-ordered mediation under K.S.A. 23-601 et seq.

The following material sets out the amended ABA Standards.

PREAMBLE
FOR THE PURPOSES OF THESE STANDARDS, FAMILY MEDIATION IS DEFINED AS A PROCESS IN WHICH A LAWYER HELPS FAMILY MEMBERS RESOLVE THEIR DISPUTES IN AN INFORMATIVE AND CONSENSUAL MANNER. THIS PROCESS REQUIRES THAT THE MEDIATOR BE QUALIFIED BY TRAINING, EXPERIENCE AND TEMPERAMENT; THAT THE MEDIATOR BE IMPARTIAL; THAT THE PARTICIPANTS REACH DECISIONS VOLUNTARILY; THAT THEIR DECISIONS BE BASED ON SUFFICIENT FACTUAL DATA; AND, THAT EACH PARTICIPANT UNDERSTANDS THE INFORMATION UPON WHICH DECISIONS ARE REACHED. WHILE FAMILY MEDIATION MAY BE VIEWED AS AN ALTERNATIVE MEANS OF CONFLICT RESOLUTION, IT IS NOT A SUBSTITUTE FOR THE BENEFIT OF INDEPENDENT LEGAL ADVICE.

I. THE MEDIATOR HAS A DUTY TO DEFINE AND DESCRIBE THE PROCESS OF MEDIATION AND ITS COST BEFORE THE PARTIES REACH AN AGREEMENT TO MEDIATE.

SPECIFIC CONSIDERATIONS: Before the actual mediation sessions begin, the mediator shall conduct an orientation session to give an overview of the process and to assess the appropriateness of mediation for the participants. Among the topics covered, the mediator shall discuss the following:

A. The mediator shall define the process in context so that the participants understand the differences between mediation and other means of conflict resolution available to them. In defining the process, the mediator shall also distinguish it from therapy or marriage counselling.

B. The mediator shall obtain sufficient information from the participants so they can mutually define the issues to be resolved in mediation.

C. It should be emphasized that the mediator may make suggestions for the participants to consider, such as alternative ways of resolving problems and may draft proposals for the participants' consideration, but that all decisions are to be made voluntarily by the participants themselves.

D. The duties and responsibilities that the mediator and the participants accept in the mediation process shall be agreed upon. The mediator shall instruct the participants that either of them or the mediator has the right to suspend or terminate the process at any time, unless the mediation has been ordered pursuant to K.S.A. 23-601 et seq.

E. The mediator shall assess the ability and willingness of the participants to mediate. The mediator has a continuing duty to assess his or her own ability and willingness to undertake mediation with the particular participants and the issues to be mediated. The mediator shall not continue and shall terminate the process, if in his or her judgment, one of the parties is not able or willing to participate in good faith. The mediator shall be satisfied that the parties can intelligently and prudently consent to all the waivers involved in the mediation process.

F. The mediator shall explain the fees for mediation. It is inappropriate for a mediator to charge a contingency fee or to base the fee on the outcome of the mediation process.

G. The mediator shall inform the participants of the need to employ independent legal counsel for advice throughout the mediation process. The mediator shall inform the participants that the mediator cannot represent either or both of them in their marital dissolution or in any legal action concerning the mediated issues.

H. The mediator shall discuss the issue of separate sessions. The mediator shall reach an understanding with the participants as to whether and under what circumstances the mediator may meet alone with either of them or with any third party.

I. It should be brought to the participants attention that emotions play a part in the decision-making process. The mediator shall attempt to elicit from each of the participants' a confirmation that each understands the connection between one's own emotions and the bargaining process.

J. The mediator shall warn the participants that their interests are in conflict. The mediator shall explain that mediation by an attorney of a dispute between participants whose interests are in conflict is being allowed only because of the participants' consent.

K. The mediator shall inform the participants that neither of them is receiving legal representation from the mediator, that the mediator is not providing the services lawyers typically provide, and that no attorney-client relationship will exist.

II. THE AGREEMENT TO MEDIATE SHALL BE IN WRITING.

SPECIFIC CONSIDERATIONS:

The agreement to mediate shall be set forth in a written contract, signed by the participants, and shall contain all the conditions, consents, and waivers required under Standard I. of this rule. In addition the contract shall state:

A. There shall be a full and fair disclosure of all information.

B. That information revealed in the course of mediation shall be considered confidential by all participants except that information required by law to be disclosed or information that the participants agree, in writing, to disclose to third parties, shall not be considered confidential.

C. The participants shall waive the right to subpoena or otherwise compel the mediator or the mediator's agent to disclose any matter disclosed in the process of setting up or conducting the mediation.

D. That either participant or the mediator may terminate the mediation at any time, unless the mediation has been ordered by the court pursuant to K.S.A. 23-601 et seq.

E. The fee to be charged for the mediation.

F. The conditions under which the mediator shall suspend or terminate the mediation. These shall include:

1. The participants' interests are so complex and difficult that the participants cannot prudently reach an agreement without legal or other expert assistance.

2. There is a known or potential conflict of interest on the part of the mediator which would affect the mediator's impartiality.

3. There has not been a fair and full disclosure of all relevant information or a participant is unable or unwilling to participate in the mediation process

4. The continuation of the mediation process would harm a participant or the proposed agreement does not protect the best interests of the children.

5. In the mediator's professional judgment the agreement does or will involve overreaching, duress, or unfairness.

G. Although the conditions of mediation are embodied in the contract, the mediator shall explain the conditions to the participants and satisfy himself or herself that the participants understand and consent to the conditions of the mediation.

III. THE MEDIATOR SHALL NOT VOLUNTARILY DISCLOSE INFORMATION OBTAINED THROUGH THE MEDIATION PROCESS WITHOUT THE PRIOR CONSENT OF BOTH PARTICIPANTS.

SPECIFIC CONSIDERATIONS:

A. The mediator shall inform the participants that the mediator will not voluntarily disclose to any third party any of the information obtained through the mediation process, unless such disclosure is required by law, without the prior consent of the participants. The mediator also shall inform the parties of the limitations of confidentiality.

B. If subpoenaed or otherwise noticed to testify, the mediator shall inform the participants immediately so as to afford them an opportunity to quash the process.

IV. THE MEDIATOR HAS A DUTY TO BE IMPARTIAL.

SPECIFIC CONSIDERATIONS:

A. The mediator shall not represent either party during the mediation process in any legal matters. However, the mediator may act as an attorney for a party after the completion of the mediation process if the subsequent legal representation is clearly distinct from the mediation issues. If the mediator has represented one of the parties beforehand, the mediator shall not undertake the mediation unless the prior representation was clearly distinct from the mediated issues.

B. The mediator shall disclose to the participants any biases or strong views relating to the issues to be mediated both in the orientation session, and also before these issues are discussed in mediation.

C. The mediator must be impartial as between the mediation participants. The mediator's task is to facilitate the ability of the participants to negotiate their own agreement, while raising questions as to the fairness, equity and feasibility of proposed options for settlement.

D. The mediator has a duty to ensure that the participants consider fully the best interests of the children, that they understand the consequences of any decision they reach concerning the children. The mediator also has a duty to assist parents to examine the separate and individual needs of their children and to consider those needs apart from their own desires for any particular parenting formula. If the mediator believes that any proposed agreement of the parents does not protect the best interests of the children, the mediator has a duty to inform them of this belief and its basis. The mediator shall terminate the mediation if the mediator believes the agreement of the parents does not protect the best interests of the children.

E. The mediator shall not communicate with either party alone or with any third party to discuss mediation issues without the prior written consent of the mediation participants.

V. THE MEDIATOR HAS A DUTY TO ASSURE THAT THE MEDIATION PARTICIPANTS MAKE DECISIONS BASED UPON SUFFICIENT INFORMATION AND KNOWLEDGE.

SPECIFIC CONSIDERATIONS:

A. The mediator shall assure that there is full financial disclosure, evaluation and development of relevant factual information in the mediation process, such as each would reasonably receive in the discovery process, or that the parties have sufficient information to intelligently waive the right to such disclosure.

B. In addition to requiring this disclosure, evaluation and development of information, the mediator shall promote the equal understanding of such information before any agreement is reached. This consideration may require the mediator to recommend that either or both obtain expert consultation in the event that it appears that additional knowledge or understanding is necessary for balanced negotiations.

C. The mediator may define the legal issues, but shall not direct the decision of the mediation participants based upon the mediator's interpretation of the law as applied to the facts of the situation. The mediator shall endeavor to assure that the participants have a sufficient understanding of appropriate statutory and case law as well as local judicial tradition, before reaching an agreement by recommending to the participants that they obtain independent legal representation during the process.

VI. THE MEDIATOR HAS A DUTY TO SUSPEND OR TERMINATE MEDIATION WHENEVER CONTINUATION OF THE PROCESS WOULD HARM ANY PARTICIPANT.

SPECIFIC CONSIDERATIONS:

A. If the mediator believes that the participants are unable or unwilling to meaningfully participate in the process; or that the issues are so complex and difficult that the participants cannot prudently reach an agreement; or that reasonable agreement is unlikely; the mediator may suspend or terminate mediation and should encourage the parties to seek appropriate professional help. The mediator shall recognize that the decisions are to be made by the parties on the basis of adequate information. The mediator shall not, however, participate in a process that the mediator believes will result in harm to a participant.

B. The mediator shall assure that each person has had the opportunity to understand fully the implications and ramifications of all options available.

C. The mediator has a duty to assure a balanced dialogue and must attempt to diffuse any manipulative or intimidating negotiation techniques utilized by either of the participants.

D. If the mediator has suspended or terminated the process, the mediator should suggest that the participants obtain additional professional services as may be appropriate.

VII. THE MEDIATOR HAS A CONTINUING DUTY TO ADVISE EACH OF THE MEDIATION PARTICIPANTS TO OBTAIN LEGAL REVIEW PRIOR TO REACHING ANY AGREEMENT.

SPECIFIC CONSIDERATIONS:

A. Each of the mediation participants should have independent legal counsel before reaching final agreement. At the beginning of the mediation process, the mediator should inform the participants that each should employ independent legal counsel for advice at the beginning of the process and that the independent legal counsel should be utilized throughout the process and before the participants have reached any accord to which they have made an emotional commitment. In order to promote the integrity of the process, the mediator shall not refer either of the participants to any particular lawyers. When an attorney referral is requested, the parties should be referred to a Bar Association list if available. In the absence of such a list, the mediator may only provide a list of qualified family law attorneys in the community.

B. The mediator shall inform the participants that the mediator cannot represent either or both of them in their marital dissolution.

C. The mediator shall obtain an agreement from the husband and the wife that each lawyer, upon request, shall be entitled to review all the factual documentation provided by the participants in the mediation process.

D. Any memo of understanding or the proposed agreement which is prepared in the mediation process should be separately reviewed by independent counsel for each participant before it is signed. While a mediator cannot insist that each participant have separate counsel, they should be discouraged from signing any agreement which has not been so reviewed. If the participants, or either of them, choose to proceed without independent counsel, the mediator shall warn them of any risk involved in not being represented, including where appropriate, the possibility that the agreement they submit to a court may be rejected as unreasonable in light of both parties' legal rights or may not be binding on them.





See also: Rule 1001 - Electronic and Photographic Media Coverage of Judicial Proceedings