Law Tips: Family Law, Part 2

ICLEF Law Tips # 39

Impartiality: A Bedrock of Mediation

Domestic relations mediations, one of the most challenging, essential and scariest forms of mediation known to anyone.  Right?!   Our faculty contributor this week at Law Tips knows full well the issues involved.  For that reason, I am especially appreciative of the contribution of Carol Terzo, The Mediation Option, Indianapolis, toward this Family Law seriesHer introduction at the 2011 “CME for Family Mediators” seminar goes to the core of domestic relations mediation.

Mediation has been responsible for much of the resolution of major world disputes. Mediation was involved in helping to end apartheid in South Africa. Mediation was involved in bringing about an eventual settlement between the government of Nepal and Maoist guerrillas. Mediators have been in continuing talks involving Hamas and the Israeli government. (See The Economist, July 2,2011, page 50-51).

But in your mind, mediating with Tamil Tigers, third-world revolutionaries, and incendiary device experts would be pieces of cake to you. For you happen to be involved in the scariest form of mediation Domestic Relations mediation. You routinely mediate disputes between divorcing parents behaving obnoxiously, disputes that include allegations of all manner of abuse, and disputes that are frequently accompanied by touchy grandparent intervenors. Your bedtime reading includes stacks of confidential statements, pages of single-spaced custody evaluations, numerous psychological reports, and every pleading that was ever filed on the case all submitted at the last minute.

But in both situations, the international disputes and the interpersonal disputes, there are the same ethical considerations. Situations that reflect on your role as an impartial neutral and issues of confidentiality. What do you do when you have reason to truly dislike one of the parties? Just how truly confidential are those communications made within the hallowed mediation room?

For this week’s Law Tips, I am pleased to provide Carol Terzo’s pointed analysis of the impartiality issues for family mediators:  

Is there an ethical issue in mediating a case involving a party who you truly dislike? This could be as simple as the party reminds you of your own ex-spouse. Or the party has done some truly heinous act that you simply cannot tolerate, such as having been convicted of child abuse. Do you have the obligation to withdraw as mediator, to terminate the mediation?

Mediators are human. Mediators come with our own preconceptions, belief systems, and histories.  Mediation is not a Facebook page where the mediator must either “Like” or “Dislike” the parties and attorneys involved. Rule 2 of the Indiana Rules for Alternative Dispute Resolution, (ADR Rules), only requires that the mediator be neutral, to “act” as the mediator.

So how does a mediator act? Kimberlee Kovatch, in her book, “Mediation: Principles and Practice”, West Publishing, 1994, lists the various roles of a mediator during the mediation process.  These roles include being a traffic cop, an orchestra conductor, a parent, a teacher, a devil’s advocate, a translator, and a deal maker. But nowhere does she mention that the mediator must take on the role of a friend.

The mediator’s supreme purpose, the purpose that allows the mediator to take on various persona during a single mediation boils down to one overriding principle; it is to facilitate the empowerment of self-determination by the parties. If the mediator keeps that one aspect always taped to his or her mental bulletin board during the mediation, then the mediator will find it easier to remain neutral regardless of personal opinion.

The mediator does not have to like or respect the party. The mediator does not have to like the resulting settlement agreement.  As mediators are well aware, we have no ownership of the agreement. The mediator must simply be and remain impartial throughout the session.

The Model Standards of Conduct for Mediators, (Model Standards), were prepared in 1994 and revised in 2005.  They were approved by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution.  Standard II 1 of the Model Standards defines impartiality as “freedom from favoritism, bias, or prejudice”. This does not mean that the mediator cannot have any favoritisms, biases, or prejudices, but that the mediator will, for the duration of the mediation, be free of those feelings.

Then what is the mediator’s duty if the mediator cannot act impartial, cannot set personal opinion aside regarding one or more of the parties?  Standard II 6 states that “if at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.” (Emphasis added.)  The mediator will no longer be neutral, and practically speaking, the mediation is bound to fail.

Therefore it is imperative that when we find ourselves in this situation, we as mediators must ask ourselves if we can leave those biases and prejudices at the front door. Can we act in an impartial manner for the duration of the session. Can we be cognizant of our own body language and can we control any prejudicial signals that we might inadvertently send out? If not, then it is in everyone’s interest for us to withdraw.

After this discussion, Carol Terzo goes back to a scenario she described at the beginning of her presentation that asks the attendees to put themselves in a room with armed admitted members of the Taliban.  She wants the audience to determine if they could be or act impartial in a mediation.  What a test!

Upcoming Family Law CLE
Need live CLE to meet your requirements?  Register for ICLEF’s upcoming Family Law CLE Seminars:

10th Annual Family Law Institute, October 18-19

CME for Family Mediators, November 1 

______________________________________________________________________

About our Law Tips faculty member:
Carol Lynn Terzo is one of the founding members of The Mediation Option, LLC, Indianapolis. Upon graduation from Indiana University, Carol taught first grade at the American School of Kuwait from 1976-1978. Her students were of many nationalities and religious backgrounds. She is a  registered civil and family law mediator. Carol spent 22 years on the bench, as a Master Commissioner, hearing civil and family law cases. Besides her mediation practice, Carol currently serves as a Senior Judge.  We are pleased to have her expert contribution at ICLEF.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page. You are encouraged to comment below or contact Nancy.   She enjoys hearing from readers and welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you on Law Tips.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Leave a Reply