Code of Practice
1. Definitions
This Code of Practice applies to all family mediation conducted or offered by Divorce Solutions SE (members of the member organizations of the Family Mediation Council [FMC]).
Family mediation is a process in which those involved in family breakdown whether or not they are a couple or other family members, appoint an impartial third person to assist them to communicate better with one another and reach their own agreement and informed decision concerning some, or all, of the issues relating to separation, divorce, children, finance or property by negotiation.
This Code applies whether or not there are or have been legal proceedings between the participants and whether or not any, or all of them, are legally represented
In this Code, "mediation" means the family mediation to which this Code applies. "participant" means any family member taking part in mediation.
2. Aims and Objectives
Mediation aims to assist participants to reach the decisions they consider appropriate to their own particular circumstances.
Mediation also aims to assist participants to communicate with each other now and in the future and to reduce the scope or intensity of disputes and conflict within the family.
Where a marriage or relationship has irretrievably broken down, mediation has regard to the principles that marriage or a relationship should be brought to an end in a way that:
- Minimises distress to the participants and to any children.
- Promotes a good relationship between the participants and any children as is possible.
- Removes or diminishes any abuse to any of the participants or children from the other participants and;
- avoids any unnecessary cost to participants.
3. Qualifications and Training
Mediators must have successfully completed such training as approved by the FMC or Member Organisation and accredited by the Family Mediation Council to qualify them to mediate upon those matters upon which they offer mediation.
Family Mediators must have successfully demonstrated personal aptitude for mediation and competence to mediate.
Mediators must have made satisfactory arrangements for regular professional practice consultancy with a professional practice consultant who is a member of and approved for the purpose by FMC or Member Organisation.
Mediators must agree to maintain and improve their skills through continuing professional development approved by the FMC.
Mediators may only undertake direct consultation with children when they have successfully completed specific training approved by their Member Organisation and/or the FMC.
Mediators undertaking publicly funded mediation must have been assessed as competent to do so by a recognised assessment scheme.
Mediators must not mediate upon any case unless they are covered by adequate professional indemnity insurance.
Mediators must abide by their complaints and disciplinary procedures laid down by the FMC of which they are a member.
4. Scope of Mediation
Mediation may cover any or all of the following matters:
Options for maintaining or ending the marital or other relationship between the adult participants and the consequences of doing so.
Arrangements for dependent children. With whom they are to live; what contact they are to have with each parent and other family members; any other aspect of parental responsibility such as, but not exclusively, schooling, holidays, religious education.
- The future of the family home and any other property or assets, including and if appropriate, pensions belonging to the adult participants, child maintenance issues and spousal maintenance and issues relating to debts
- How adjustments to these arrangements are to be decided upon in the future.
- Participants and Mediators may agree that mediation will cover any other matter which it would be helpful to resolve in connection with relationship breakdown between the participants and which Mediators consider to be suitable for mediation.
5. General Principles
Impartiality and conflicts of interest:
It is the duty of the Mediator at all times to ensure that he or she acts with impartiality and that that this is not compromised at any time especially by any conflict of interest, actual or capable of being perceived as such.
Mediators must not have any personal interest in the outcome of the mediation.
Mediators must not mediate in any case in which they have acquired or may acquire relevant information in any private or other professional capacity unless they declare this to all participants beforehand.
Mediators must not act or continue to act if they or a member of their firm has acted for any of the participants in issues relating to the mediation unless they declare this to all participants beforehand.
Mediators must not accept referrals from any professional practice with whom they are employed, in partnership or contracted, on full or part-time basis and which is involved in advising any of the participants on the matter which relate or capable of relating to mediation, even though the practices are separate legal entities.
Mediators must not refer a participant for advice to any other professional service with whom they are employed, in partnership or contracted, on a full or part-time basis in matters which relate or are capable of relating to the mediation even though the practices are separate legal entities.
Meditation must be conducted as an independent professional activity and must be distinguished from any other professional roll in which the mediator may practice.
Participation in mediation is voluntary at all times and participants are always free to withdraw. Where mediators consider that a participant is unable or unwilling to take part in the process freely and fully, they must raise the issue and possible suspend or terminate the mediation.
Mediation must remain neutral as to the outcome of mediation at all times. Mediators must not seek to impose their preferred outcome on the participants or to influence them to adopt it. However, Mediators may suggest participants consider resolutions that might fall outside the parameters which a Court might approve or Order. Mediators may inform participants of various/possible courses of action, their legal or other implications, and assist them to explore these, but must make it clear that they are not giving advice.
Impartiality:
Mediators must at all times remain impartial between the participants and conduct the mediation process in a fair and even-handed manner.
Mediators must seek to prevent manipulative, threatening or intimidating behaviour by any participant. They must conduct the process in such a way as to redress, as far as possible, any imbalance of power between the participants, if such behaviour, or other imbalance seems likely to render the mediation unfair or ineffective, Mediators must take appropriate steps to seek to prevent this including terminating the mediation if necessary.
Confidentiality:
Subject to paragraphs 5.5.3, 5.5.4, and 5.5.5 below Mediators must not disclose any information about, or obtained in the course of mediation, to anyone, including a Court welfare officer or a Court, without the express consent of each participant, or where an Order of the Court or law imposes an overriding obligation of disclosure on Mediators.
Mediators must not discuss the mediation or correspond with any participant's legal advisor without the express consent from each participant.
Where Mediators suspect that a child is suffering or is likely to suffer significant harm, they must ensure that the relevant Social Services department is notified.
Mediators may notify the appropriate agency if they consider that other public policy considerations prevail, such as an adult suffering or likely to suffer significant harm.
Where the Mediator suspects that they are required to make disclosure to the appropriate government authority under the Proceeds of Crime Act 2002 and/or relevant money laundering regulations, they must stop the mediation immediately without informing the clients of the reason.
Privilege and legal proceedings:
Subject to paragraph 5.6.2 below, all discussions and negotiations in mediation must be conducted on a legally privileged basis. Before the mediation commences the participants must agree in writing that discussions and negotiations in mediation are not to be referred to in any legal proceedings, and that Mediators cannot be required to give evidence or produce any notes or records made in the course of the mediation, unless the law imposes upon Mediators an overriding obligation of disclosure upon the Mediator.
Participants must agree that all factual information material to financial issues will be provided on an open basis, so that it can be referred to in legal proceedings.
All information or correspondence provided by either participant should be shared openly and not withheld, except any address or telephone number or as the participants may agree otherwise.
Privilege will not apply to communications indicating that a child or other person is suffering or likely to suffer significant harm, or where other public policy considerations prevail.
Welfare of children:
At all times Mediators must have special regard to the welfare of any children of the family. They should encourage participants to focus on the needs and interests of the children as well as their own.
Mediators must encourage participants to consider the children's wishes and feelings. If appropriate they may discuss with them whether and to what extent it is proper to consult the children directly in order to ascertain their wishes and feelings.
Mediators and both participants must agree that it is appropriate to consult any children directly; the consent of the children must first be obtained. Mediators consulting directly with any children must have been specifically trained to do so. Such Mediators must provide appropriate facilities for direct consultation.
Where qualified Mediators undertake direct consultation with any child, they must offer that child confidentiality as to any disclosure that the child may make to them. This must be explained to the participants before they agree to the direct consultation. Confidentiality in direct consultation with children must always be exercised subject to paragraphs 5.5.3, 5.5.4, 5.5.5, and 5.6.4 above.
Where Mediators suspect that any child is suffering or is likely to suffer significant harm, they must advise the participants to seek help from an appropriate agency. Mediators must also advise the participants that, in any event, they are obliged to report the matter to an appropriate agency in accordance with paragraph 5.5.3.
Where Mediators consider that the participants are or are proposing to act in a manner likely to be seriously detrimental to the welfare of any child of the family or family member, they may withdraw from the mediation. The reason for this must be outlined in any further communication.
Abuse and power imbalances within the family:
Mediators must be alert to the likelihood of power imbalances existing between the participants.
In all cases, Mediators must seek to ensure that participants take part in the mediation willingly and without fear of violence or harm. They must seek to discover through a screening procedure whether or not there is a fear of abuse or any other harm and whether or not it is alleged that any participant has been or is likely to be abusive towards another. Where abuse is alleged, or suspected Mediators must discuss whether a participant wishes to take part in mediation and information about available support services should be provided.
Where mediation does take place, Mediators must uphold throughout the principals of voluntary participation, fairness and safety and must conduct the process in accordance with this section. In addition, steps must be taken to ensure the safety of all participants on arrival and departure.
Mediators must seek to prevent manipulative, threatening or intimidating behaviour by either participant during the mediation.
6. Conduct of the mediation
All assessments for suitability for mediation should be conducted on an individual participant basis either via video or at in-person meetings (sometimes via telephone, but only in exceptional circumstances). These meetings must include domestic abuse screening.
Mediators must manage the mediation process. They should consult the participants on management decisions such as ordering of issues and the agenda for each mediation session but must not relinquish control of the process of the participants.
Throughout the mediation Mediators must keep the possibility of reconciliation of the participants under review.
Participants must be clearly advised at the outset of the nature and purpose of the mediation and how it differs from other services such as marriage or relationship counselling, therapy or legal representation.
The participants must be informed of all the general principals set out in section 5 above, including the nature and limits of the principals of confidentiality and privilege and mediators' special concern for the welfare of any children of the family.
Participants must be informed of the extent of any disclosure which will be required in cases relating to their property and finances.
Each participant must be supplied with written information covering the main points in this Code and given the opportunity to ask questions about it.
Mediators must ensure the participants agree the Terms and Conditions relating to the mediation before dealing with the substantive issues. This must be in the form of a written agreement which reflects the main principals of this Code. The agreement must also set out the participant fees and company Complaints Procedure. A copy of our company's Complaints Procedure can be requested via telephone or email at any time.
Participants should notify any legal advisors acting for them of the appointment of a mediator.
Where, during a privately funded mediation, Mediators become aware that one or more of the participants may qualify for public funding, they must inform the client of this and, if they do not undertake publicly funded work, of the potential services of a mediation practice with an LCS Contract (Legal Aid).
Mediators must assist participants to define the issues, identify areas of agreement, explore the options and seek to reach agreement upon them.
Mediators must seek to ensure that participants reach their decision upon sufficient information and knowledge. They must inform participants of the need to give full and frank disclosure of all material relevant information and supporting documentation.
Mediators must ensure each participant is given the opportunity to make enquiries about information disclosed by any other participant and to seek further information and documentation when required. They must promote the participants' equal understanding of such information before any final agreement is reached.
Mediators must make it clear that they do not themselves make further enquiries to verify the information provided by any participant, that each participant may seek independent legal advice as to the adequacy of the information disclosed before reaching a decision; that in any Court proceedings a sworn Affidavit and written statement or oral evidence may be required and that authoritative calculations of liability under the Child Support Act 1991 can only be made by the Child Support Agency or any replacement organisation established under the Child Maintenance and Other Payments Act 2008.
Mediators must inform participants of the advantages of seeking independent legal or other appropriate advice whenever this appears desirable during the course of the mediation. They must advise participants that it is in their own interests to seek independent legal advice before reaching any final agreement and warn them of the risks and disadvantages if they do not do so.
Mediation meetings are commonly conducted without lawyers present. However, solicitors or counsel acting for the participants may be invited to participate in the mediation process and in any communications if the participants agree and the Mediator considers that it would be appropriate.
When appropriate and with the consent of both participants, arrangements may be made for the attendance of professional third parties other than lawyers, such as interpreters, accountants, actuaries, independent financial advisors and other advisors.
When appropriate and with the consent of both parties, arrangements may be made for the attendance of third parties with an interest in the proceedings, such as new partners, parties with a legal or beneficial interest in property that is the subject of dispute, or other family members.
Mediators must seek to ensure that agreements reached by participants are fully informed and freely made. Participants must have as good an understanding as is practicable of the consequences of their decisions for themselves, the children and other relevant family members.
