The Evolution of Mediation
In 1996, the Divorce Code was revised to encourage local courts to establish voluntary mediation in both divorce and custody (see 23 PA CS §3901 through 3904). In October of 1999, the Supreme Court promulgated Rule No. 234 which established Rules of Civil Procedure 1940.1 through 1940.8 governing custody mediation programs. Any county that had pre‑established local rules governing custody mediation orientation programs were grand-fathered in, Montgomery County being one of them (see Montgomery County Local Rules No.*1940.3 through *1940.12 which are even more stringent than the Pennsylvania State Rules). These new Pennsylvania Rules of Civil Procedure are not normally applicable to the private mediation sector but they are applicable when the court has referred mediation to a private mediator. The rules established procedures for referring cases to mediation wherein the court may order a mandatory mediation orientation unless there is a Protection from Abuse action either pending or filed within the last twenty‑ four months. The court may also refer parties to mediation.
The rules established minimal qualification for mediators which include that the mediator have a Bachelor’s Degree and practical experience in law, psychiatry, psychology, counseling, family therapy, or a comparable behavioral or social science. The mediator must have completed basic training that has been approved by the Academy of Family Mediators (no longer in existence, but supplanted by the Association of Conflict Resolution), the American Bar Association, the American Academy of Matrimonial Lawyers or the Administrative Office of the Pennsylvania Court. The mediator is required to carry professional mediation liability insurance. The mediator must obtain additional training by mediating four cases totaling ten hours under the supervision of a mediator that has been approved by the court to supervise such training.
Mediators must comply with the ethical standards of both the mediation profession and any other profession of the mediator. Thus a lawyer mediator is held to mediation ethical standards as well as the Rules of Professional Conduct for lawyers and mental health professionals are held to their professional standards as well as the ethical standards of the mediation profession. There are numerous mediation ethical standards promulgated, among them being the ABA Divorce and Family Mediation Standards of Practice, the Family Law Section of the American Bar Association Standards of Practice for Lawyer Mediators and Family Disputes, the Academy of Family Mediators Standards of Practice, and numerous other promulgated standards. The difficulty lies in the fact that there is no governing body for the enforcement of mediator ethical standards as there are governing bodies for the enforcement of ethical standards in other professions.
The duties of a mediator in a court annexed mediation program are spelled out in the Rules of Civil Procedure. They include a continual ethical obligation to screen for abuse, and the requirement to thoroughly apprise the mediating parties of the costs and the process of mediation. Additionally, the mediator must ensure his or her neutrality and make it clear to the mediating parties that the mediator is not representing nor can they represent either party in an adversarial proceeding, thus encouraging mediating parties to have independent legal counsel. Under the Montgomery County Rules of Civil Procedure there is no ability for a mediator to draft a legally binding agreement. However, in Chester County, if the parties are in agreement, the mediator may complete a “fill in the blank” custody form agreement and order, the parties sign it and the order is entered by a Chester County judge either after review by counsel, or immediately if the parties agree. (See attached Chester County form). It is important that the practitioner check their local rules.
In custody mediation, the mediator must ensure that the parties consider the best interest of the children. With the parties’ consent, the mediator may bring the children into the mediation or invite other third parties to participate as appropriate. Furthermore, the Rules of Civil Procedure spell out conditions under which the mediator may terminate and/or must terminate the mediation. It should be noted that parties may always terminate mediation since it is a voluntary process.
The confidentiality of the mediation process is protected by 42 Pa. C.S.A. §5949 dealing with confidential mediation communications and documents. Under this statute, all communications and documents that arise in mediation are privileged and therefore inadmissible except:
1. A settlement agreement may be introduced into evidence to enforce the agreement unless said agreement states that it is unenforceable or not intended to be legally binding.
2. Communications and documents arising in mediation are admissible to the extent that the communication is evidence relevant in a criminal matter. For example:
a. A threat of bodily injury on a person.
b. A threat that damage may be inflicted on real or personal property that would constitute a felony.
c. Conduct during mediation that causes direct bodily injury.
There is no privilege for fraudulent statements made in mediation that are relevant evidence utilized to set aside or enforce a mediated agreement that was reached as a result of that fraudulent communication. Additionally, any document which otherwise exists or existed independent of the mediation is not privileged and is discoverable and admissible.
Hand in hand with the Confidential Mediation Statute is Rule 408 of the Pa. Rules of Evidence (225 Pa. Code, Article IV). This Rule of Evidence ensures that evidence of conduct or statements made in compromised negotiations are not admissible. However, the Rule does not require the exclusion of an admission of fact or any evidence that is otherwise discoverable just because it is presented in the course of compromise or negotiations. Unlike the Federal Rules of Evidence, the Pennsylvania Rule supports existing Pennsylvania Law that distinct admissions of fact made during settlement negotiations are admissible. See Hammel v. Christian. 416 Pa. Super. 78,610 A.2d 979 (1992 ).
Practitioners should be very diligent in helping their clients choose qualified mediators. There are no formal requirements or qualifications for mediators operating in the private sector. Practitioners must be aware of the confidentiality privilege attendant to the mediation process. The parties may elect to waive the privilege of confidentiality as to their respective attorneys. That waiver will allow the mediator to share all information with their counsel. Counsel can diligently monitor the mediation, be available to the mediating parties throughout the process for the purpose of advising parties as to their legal rights, the ramifications of their agreements, and enable parties to participate in mediation with adequate knowledge to make informed decisions.