RESOLUTION SUPPORTING RECOMMENDATIONS FOR A MODEL COURT-CONNECTED DIVORCE AND CUSTODY MEDIATION PROGRAM IN PENNSYLVANIA

WHEREAS, Act 20 of 1996 (23 Pa.C.S. Sec. 3901 et seq.) authorizes the court in Pennsylvania to establish divorce and custody mediation programs;

WHEREAS, Act 20 mandates the establishment of statewide guidelines and rules to govern the county divorce and custody mediation programs;

WHEREAS, the Supreme Court of Pennsylvania directed its Domestic Relations Committee to make recommendations for statewide rules and guidelines for the divorce and custody mediation programs;

WHEREAS, the Domestic Relations Committee requested input from mediator-members of the Family Law Section of the Philadelphia Bar Association regarding the establishment of a model court-connected divorce and custody mediation program in Pennsylvania;

WHEREAS, the Divorce Mediation Committee (the Committee) of the Family Law Section conducted a study of the divorce and custody mediation programs in six states, including Florida, Maine, New Jersey, North Carolina, Virginia, and Pennsylvania;

WHEREAS, the Committee used the research to develop a model mediation program for divorce and custody mediation cases in Pennsylvania;

WHEREAS, the Family Law Section has adopted the Recommendations for a Model Court-Connected Divorce and Custody Mediation Program in Pennsylvania , as set forth in the Report prepared by the Divorce Mediation Committee (the Recommendations);

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association supports the Recommendations proposed by the Family Law Section;

AND BE IT FURTHER RESOLVED that the Board of Governors directs the Chancellor to submit the Recommendations to the Honorable Justices of the Supreme Court of Pennsylvania and its Domestic Relations Committee to assist the Court in establishing a model divorce and custody mediation program for Pennsylvania.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 27, 1997

Summary of Recommendations for a Model Court-Connected
Divorce and Custody Mediation Program in Pennsylvania

Prepared by the Divorce Mediation Committee
Family Law Section, Philadelphia Bar Association

January 30, 1997

Authored by
Rachel Munafo, Esquire, Chair
Jean Biesecker, Esquire
Jan Felgoise, Esquire
Julia McLaughlin, Esquire

in consultation with
Judy Shopp, Esquire

with editorial assistance by
Janet L. Novack, Esquire
Michael G. Campbell, Esquire

and with research and other assistance by
Edward Blumstein, Esquire
Eleanor Flannery, Esquire
Cindy Hallock, Esquire
Gordon Wase, Esquire
Nancy Olivere Weber, Esquire

Family mediation is defined as a process in which a third party neutral 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 to conflict resolution, it is not a substitute for the benefit of independent legal advice.

Mediation is an alternative means of resolving family disputes throughout the country for many reasons. Mediation focuses on the needs of the parties and the best interest of the children and allows the disputants to decide their own resolution in a confidential setting. This national trend has occurred also because the judicial system most everywhere is overburdened by exploding case loads. In some states lawyers prefer mediation because it allows them to handle more cases than they would have otherwise and without the high levels of hostility associated with litigation. Mediation is generally far less expensive, takes substantially less time to reach resolution than litigation and fosters cooperation between disputants.the Committee) conducted research on the court-connected family mediation programs in six states: Florida, New Jersey, North Carolina, Maine, several county programs in Pennsylvania, and Virginia. The purpose of the research was to recommend a model mediation program for divorce and custody cases throughout the Commonwealth of Pennsylvania using the most successful mediation programs in the other states as a guide. The Committee identified seven criteria in analyzing and comparing the various state programs: 1) legislative enactments, 2) program administration, 3) funding source, 4) qualifications for mediators, 5) compensation for mediators, 6) attorney participation, and 7) method of evaluation of the programs. This report presents the Committee's recommendations for a model family mediation program in Pennsylvania based upon the results of the Committee's research.

Our recommendations are as follows:

  1. The Supreme Court should implement a statewide divorce and custody mediation program. In addition, the Supreme Court should establish a policy encouraging judges, masters and hearing officers to inform litigants of the option to use mediation.

  2. The Supreme Court should establish a court alternative dispute resolution service (CADR) within the Administrative Office of the Pennsylvania Supreme Court (AOCP). The CADR should be responsible for promoting mediation programs in the court system, for establishing the training and certification requirements for mediators, for monitoring the funding for alternative dispute resolution programs, for collecting statistics, and for preparing a written evaluation report to the Supreme Court on an annual basis.

  3. The Supreme Court should fund the divorce and custody mediation programs by a combination of state tax dollars, filing fee revenues, federal IV-D funds and any other appropriate means.

  4. The Supreme Court should establish standards for divorce and custody mediation including: a post graduate degree in an appropriate field; practical experience in an appropriate field; basic divorce and custody mediation training; advanced mediation training; alternative provisions for otherwise qualified mediators; and provisions for continuing legal education (CLE) and pro-bono credits. There should be a provision for postgraduate students to participate in the court-connected mediation programs. Mediators should be required to maintain mediation professional liability insurance and to abide by the ethical standards of the Academy of Family Mediators and/or the American Bar Association.

  5. Mediators who participate in the mediation programs should receive compensation in an amount fixed by the County Mediation Program Administrator (CMPA).

  6. The CMPA should determine the level of attorney participation in the mediation process at the county level.

  7. The Supreme Court should require the CMPA to distribute uniform statistical report forms to each mediator to be completed after each mediation. The CMPA should be required to provide quarterly statistical reports to the CADR and CADR should be required to provide an annual report to the Supreme Court. This information will enable the Supreme Court to monitor, evaluate and improve the delivery of mediation services across the state.

Education about mediation is the key to getting the mediation process started in the court system. At the present time, both the Bench and the Bar in Pennsylvania have little information and knowledge about mediation. The time is right for our Supreme Court to establish an alternative dispute resolution service (CADR) to promote the use of mediation in the court system. The Supreme Court should promote mediation education for both the Bench and Bar and encourage judges to inform litigants about mediation as an option. The Supreme Court also should establish statewide mandatory mediation orientation in both divorce and custody cases. It is important to include divorce and support issues in the mediation process for the same reasons that custody mediation is promoted, namely, that it focuses on the best interest of the children and reduces hostility between the parties. York County has established a mandatory custody mediation program that can be used as a model for the rest of the state. Allegheny County is just starting its mandatory custody mediation orientation program, which bears watching. Nowhere in Pennsylvania, however, is there a divorce mediation program.

Furthermore, it is important that the CADR establish standards for mediators who participate in court-connected programs. The success of the programs depends greatly on the quality of the mediators. The Committee recommends that the Court adopt the standards proposed in this Report. These standards will apply only to the court-connected mediation programs. Mediators in the community who do not participate in the court's program should not be affected by the court's certification process in conducting their private practices.

Finally, the CADR should monitor and evaluate the court-connected mediation programs. Florida has established a statewide procedure for evaluation which CADR should consider for Pennsylvania. Maine, Ohio and York County, Pennsylvania have received grants from the State Justice Institute in Alexandria, Virginia to evaluate their mediation programs. CADR should obtain the results of these studies to assist in the development and evaluation of programs in Pennsylvania.