Good Practice Guide Mediation
Good Practice Guide Mediation
This Guidance was revised in September 2015. The law or procedure may have changed since that
time and members should check the up-to-date position.
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Index
1.
2.
3.
5.
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1.
The new Manual sets out all requirements relating to training, qualification, continuing development,
professional practice consultancy and the developmental pathway for mediators.
It also describes the standards in relation to training courses, training and required qualification of PPCs,
requirements in relation to complaints and the responsibilities of the member organisations in supporting and
ensuring that their mediator members meet the requirements as set out by the FMC.
From 1 January 2015, all family mediators will be required to work towards the standard of accreditation set out
in the FMC Manual of Professional Standards and leading to the award of the title FMC Accredited Family
Mediator (FMCA).
Details of transitional arrangements for mediators who have yet to reach an accredited standard of practice are
also set out in the manual. Mediators are advised to be in contact with their own PPC in order to discuss how
the new standards will or may affect their practice in the first instance.
The FMC Manual is at appendix 1 of this guide or can be viewed/downloaded from
www.familymediationcouncil.org.uk. Further information will be published and circulated by the FMC and
member organisations as it becomes available.
Accreditation
From 1 January 2015, all family mediators are required to work towards and to attain FMCA status within three
years of their foundation training wherever possible and practicable. (The manual at appendix 1 sets out the
exceptional circumstances and the transitional arrangements for mediators trained before 1 January 2015 and
not yet accredited. Further information will be published by the FMC as it becomes available.) It is important
that all mediators understand that their foundation or initial training is the beginning of their continuing
development towards accreditation and that post-accreditation they will still be required to maintain their
learning and development to the standards set by the FMC.
From 1 January 2015 accreditation is for a period of three years and mediators will be required to re-accredit at
the end of each three years of practice.
Full details of the routes for accreditation via either The Law Society or the Family Mediation Council
Assessment of Professional Competence scheme are provided on the relevant websites (and see appendix 1 of
this guide).
Conduct of mediation information and assessment meetings
The current requirements for recognition to conduct Mediation, Information and Assessment Meetings cease at
the end of 2014.
Unaccredited mediators who have been recognised via the existing arrangements to conduct MIAMs (that is,
have been signed off by their PPC for the conduct of MIAMs) may continue to do so until 31 December 2015.
All other unaccredited mediators who carry out MIAMs that do not lead to mediation or where a mediation
breaks down or ends and there is a need for the relevant sections of the C100 or Form A to be signed, must ask
their PPC to sign the relevant section as an FMCA (authorised mediator as defined in s.10 Children and Families
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Act 2014). Any mediator who is uncertain as to their status in relation to the conduct of MIAMs should check
the transitional arrangements set out in the FMC Manual and discuss their situation with their own PPC.
Assist new mediators as they begin their practice (including checking mediation document drafts and
signing the relevant sections of the C100 or Form A as and when required).
Support mediators in the development of their practice and towards accreditation, including provision of
a statement confirming and endorsing their supervisees application for accreditation, to the standards
set out in the FMC Manual of Professional Standards.
Be available to support mediators with issues that may arise in their day-to-day practice (including
providing support to any mediator where there has been a client complaint).
Provide confirmation as and when required that the mediator has met the required standards in relation
to continuing development and practice consultancy.
Where mediators provide legally aided mediation, the PPC provides practice supervision to the terms required
by the Legal Aid Agency in its family mediation contract, which includes review of mediation files. A PPC who
undertakes this role must be accredited to the Mediation Quality Mark (MQM) standard required by the Legal
Aid Agency and must be an accredited mediator and FMC registered PPC.
Full details in relation to the PPCs role in a mediators continuing development, practice consultancy and
accreditation are set out in appendix 1.
Mediators are required to meet with their PPC on a one-to-one basis and may also accrue their additional
required hours by meeting with a PPC as a member of a peer group. Mediators working towards their
accreditation are required to undertake more hours with their PPC than mediators who are post-accreditation,
in order to ensure their continuing development toward accreditation and to provide them with an enhanced
level of professional support. A level of consultancy can be provided via telephone/Skype, but mediators should
be aware that this should not be the greater part of their required PPC hours. Many PPCs lead peer groups or
arrange with mediators to offer peer group meetings in local areas. The PPC network is still growing and there
are shortages in some areas, so some PPCs travel to see mediators some distance from their own home area.
There is a charge for time spent with a PPC. Rates vary, so mediators should ask what the individual PPCs rate
is when they make contact with them. Many PPCs offer rates which are lower than their usual hourly rate (in
any other professional role they have) in order to ensure that they offer an affordable service to mediators.
PPCs who travel to consultees generally charge for travel so mediators should check this too if they choose a
PPC who is at a distance from them.
Generally, it is the responsibility of the individual mediator to choose and maintain contact with a PPC whom
they think best meets their needs. It is important that the relationship between mediator and PPC is good,
productive and comfortable, so mediators are encouraged to choose their PPC carefully. PPCs should offer a
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contract or agreement for the purposes of setting out arrangements for professional support, which should be
signed by both parties. If a mediator wishes to change or move on, then their PPC will expect that the mediator
will let them know that is their intention and any new PPC chosen by the mediator will need to check that the
former PPC has been informed of the mediators decision to change and the reasons for it. They will also
familiarise themselves with any issues or concerns on the part of the previous PPC.
Mediators need to be aware that they must meet the requirements for time spent annually with their PPC as
set out by the Family Mediation Council standards. PPCs generally expect to spread the time and support they
provide to mediators over the year as a means to properly support the mediator in practice and mediators
should discuss with their chosen PPC a schedule for their consultancy over the year.
PPCs also prepare a statement, which forms part of the mediators accreditation portfolio. Mediators should be
aware that in order for their PPC to be able to do this, they must have sufficient knowledge of the mediators
professional development and practice leading up to their application for accreditation.
Continuing development
Under the new arrangements to be introduced on 1 January 2015, mediators will be required to have a
continuing development record. The FMC describes this as being able to demonstrate that adequate steps have
been undertaken to keep up to date and maintain the ability to practise competently. These new arrangements
will replace the previous annual CPD requirement.
Continuing development can be achieved through a wide range of means, including accredited and nonaccredited courses and conferences, practice-based activities such as co-mediation, observation and actionbased learning, online learning, research, reading and higher education programmes. There are no restrictions
on the kind of activities that can count, but it is important that they are relevant to the mediators practice,
result in relevant learning and benefits, and taken together provide an adequate level of updating and
development.
It is important for mediators to discuss their continuing development with their PPC. However, the FMC
framework makes clear that activities that are chosen and undertaken are the responsibility of the mediator
and do not need to be endorsed by the PPC. The Manual further points out that mediators are strongly advised
to record and evaluate activities as they take place rather than waiting until the point of re-application. It will
therefore be important that mediators develop good habits in recording activities undertaken and reflecting on
them (with or without the help and support of their PPC) and in considering their overall developmental
pathway both before and after accreditation.
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they meet the requirements set out by the Legal Aid Agency in relation to appropriate administration of their
contract, including obtaining all documentary evidence from clients in regard to their eligibility for legal aid. 1
Insurance
All mediators must have appropriate professional indemnity cover for their practice. This is a requirement for
mediators whether they are offering legally aided mediation or in private client practice. It remains the case
that solicitor members can usually simply inform their insurer that they will be offering mediation without
incurring any loading or excess premium to their existing cover. (Barrister mediators should likewise check
whether their existing insurance will also cover any work that they do as a mediator.)
However, it is important that mediators ensure that they have a suitable level of insurance and that it covers,
for example, where they may be working away from their office base, e.g. at court, working with a co-mediator
under the rules of that mediators member organisation, in a hybrid process or where the clients asset base
may exceed their level of indemnity (it is usually possible to negotiate single premiums where there is a need to
increase cover for an individual case). All mediators are reminded that they must ensure that they are working
within the FMC Code of Practice and the fundamental principles of family mediation for their insurance cover
to remain valid on any claim.
2.
Family mediation is a process in which those whose relationship is ending or has ended, regardless of whether
they are a couple or other family members, appoint an impartial third person to assist them to communicate
better with one another and to reach their own agreed and informed decisions concerning some or all of the
issues relating to their separation, divorce, children, finance or property by negotiation. Family mediation may
also be appropriate in other family transitions, in respect of other family disputes or, for example, in relation to
inheritance planning or disputes.
Family mediation is a principled and structured process of family dispute resolution. In assessing for suitability
and in conducting mediation, all mediators should ensure that they fully explain the principles of mediation to
clients/prospective clients and make sure that at all times they adhere to those principles in practice.
1
For
full
information,
see:
www.justice.gov.uk/downloads/legal-aid/quality/mediation-quality-mark-standard.pdf
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Impartiality
The requirements in regard to impartiality and conflicts of interest are set out in the Family Mediation Council
Code of Practice (of which Resolution is a signatory). Generally, mediators must:
Be aware of and act in a way that is impartial and balanced as between any participants to the mediation.
Not mediate in any case in which they have acquired or may acquire relevant information in any private
or other professional capacity.
Not act or continue to act if they or a member of their firm has acted for any of the individuals in issues
not relating to the mediation.
Not accept referrals from any professional practice with whom they are employed, in partnership or
contracted and which is involved in advising one of the participants on matters that relate or are capable
of relating to the mediation, even though the practices are separate legal entities.
Not refer a participant for advice or for any other professional service to a professional practice with
whom they are employed, in partnership or contracted, if that advice or service relates or is capable of
relating to the mediation, even though the practices are separate legal entities.
Conduct mediation as an independent professional activity and must distinguish that activity from any
other professional role the mediator may practise.
Impartiality in practice
Mediators have a particular responsibility to ensure that they seek to prevent any manipulative, threatening or
intimidating behaviour by either client. They should also seek to address wherever possible any imbalance of
power that exists, or arises during the mediation process.
Where it appears that any imbalance of power or behaviour between the clients is preventing or is likely to
prevent the mediation from being a fair and/or effective process, mediators should consider taking appropriate
steps, including ending (or not starting) the mediation if necessary.
In setting up or assessing for suitability, mediators should ensure that prospective clients are informed as early
as possible of the mediators duty to conduct any mediation process in an impartial and balanced manner. This
can be done in a range of ways:
at the point of discussing and preparing to sign the agreement to mediate; and/or
giving permission to clients to raise any concern they may have at any point as to the mediators
impartial conduct of the mediation.
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Voluntary participation
Mediation and the participation of all mediators and clients is voluntary at all times.
Section 10 of the Children and Families Act 2014 and the Child Arrangements Programme have made
compulsory the attendance at a MIAM for any applicant in most family proceedings (and the encouragement to
attend a similar meeting for respondents) in order to consider mediation or other form of family dispute
resolution. It is even more important that mediators ensure:
Prospective and current clients are alerted to and reminded that mediation is a voluntary process and
should be a positive choice for each and both of them.
Prospective clients have the opportunity in individual meetings to explore whether mediation is the right
and voluntary choice for them.
They consider whether a mediation process should commence or continue if there are concerns in
relation to voluntary participation, and particularly where the mediator considers that either or both
clients are unable, unwilling or lack appropriate capacity to take part in the process fully or freely
because of, for example, abuse or threat of abuse (in which case the mediator must raise the issue and
discuss their concerns with the clients and consider whether it is appropriate to start, to suspend or end
the mediation process).
They do not give reasons for people deciding not to take part in mediation, or apportion blame of any
kind to a decision not to enter or continue with mediation, for the purposes of completing an FM1.
Where MIAM attendance is referred from the court, mediators take particular care to explain the
voluntary nature of participation in a mediation.
As above, the principle of voluntary participation can be made clear to clients/prospective clients in a range of
ways.
Neutrality
Mediators must remain neutral as to the outcome of any mediation. This requires that mediators monitor their
practice at all times to ensure that they are not seeking to impose their own preferred outcome or to influence
either or both clients towards an outcome not of their choosing.
Resolution mediators do have a responsibility, however, to inform clients if they consider that the outcome/s
they are considering might or would fall outside that which a court might approve or order. Mediators may also
provide legal and other information designed to assist clients in a mediation process to make informed
decisions, but must make it clear that they do not provide partial advice of any kind. Information should be
provided as neutral and mutual, and not individualised to either client. Mediators should also be alert to points
at which it would be helpful for either or both clients to have advice from their individual legal advisers or other
specialised advice or support that would assist them in reaching an outcome.
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Explain the importance of individual legal advice, especially in relation to any proposals or decisions they
may reach in a mediation process but respecting the clients right to choose not to seek legal advice if
that is the case.
Clarify that although mediators can provide information in relation to general principles of family law in
a neutral and mutual way, they are not able to provide advice or information on how it may affect the
clients individual circumstances.
Ensure that they are able to provide information in respect of how clients can find details of local
Resolution specialist family solicitor members and some of the ways in which solicitors might offer
advice services in affordable ways.
Provide information in respect of other sources of legal information and/or advice, whether via the
internet, telephone helpline services, local providers such as the CAB or local law centres. Information
provided should be in relation to recognised and accredited providers of pro bono or other charitable or
voluntary based services.
Whilst it is the case that mediators may have considerable concerns for those who cannot afford legal advice,
they must ensure that they work within the requirements of the FMC Code of Practice and must not provide
partial advice, as to do so would breach their neutrality and the impartiality of any mediation process.
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For clarity and as information for mediators, in Farm Assist v DEFRA [2009] EWHC 1102 (TCC) Ramsey J, having
reviewed all available mediation precedents, defined confidentiality and privilege as follows:
Confidentiality: the proceedings are confidential both as between the parties and as between the parties and
the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the
mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality, but
where it is necessary in the interests of justice for evidence to be given of confidential matters, the courts will
order or permit that evidence to be given or produced.
W ithout prejudice privilege: the proceedings are covered by without prejudice privilege. This is a privilege
which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.
Other privileges: if another privilege attaches to documents that are produced by a party and shown to a
mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the
without prejudice privilege.
Although Farm Assist v DEFRA concerns a civil case, the principles set out by Ramsey J in his judgment provide a
useful framework for family mediators, particularly in relation to matters involving financial/property
discussions or proposals.
Mediators should also be aware that, more recently, attempts to utilise other civil judgments have started to
emerge, whether it is to establish that an agreement was reached in a mediation (Brown v Rice & Patel [2007]
EWHC 625 (ChD)), because of third-party interest (Cattley v Pollard [2007] 3 WLR 317, because of alleged
misrepresentation, fraud or undue influence (Unilever v Proctor and Gamble [2000]), or on interests of justice
principles (Farm Assist v DEFRA [2009] EWHC 1102).
Clients must also understand and agree that all factual information in regard to financial issues must be
provided on an open basis, so that it can be referred to in any legal proceedings. All prospective mediation
clients should also understand and agree that all information or correspondence provided by either of them in a
mediation process should be shared openly and not withheld, excepting any address or telephone number or as
the clients may agree otherwise.
It is also important that mediators are aware that Imerman v Tchenguiz [2010] EWCA Civ 908 is likely to mean
that any documents produced by a client in mediation that have been obtained without the knowledge of the
other and that relate to the others financial situation or position should not be read or accepted (or in the case
of emailed attachments, opened) unless and until the mediator has clarified what the document is and how it
came into the possession of the client. If it is clear that one client was not aware that any document had been
taken or is now in the possession of the other, the mediator should stop the mediation and encourage each and
both clients to seek legal advice about the situation before continuing with any mediation. Where it is the case
that a document is produced that could indicate that full disclosure has not been made or there has been an
attempt to hide information, the mediator must also consider whether and if the mediation should or can
continue.
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encourage and assist client parents to focus on the needs and interests of their children and their future
parenting.
Mediators must consider the wishes and feelings of any children of the family and encourage parents to
consider the ways in which they may consider their childrens views, wishes and feelings.
Where it is appropriate to do so, mediators may discuss with client parents whether and to what extent it is
proper to consult with their children directly in order to ascertain the childs perspective and any messages they
would like their parents to have about arrangements being made for their future parenting. Where clients and
mediators agree that it is appropriate to do so, and there has been appropriate discussion with the parents as to
how and when this might take place (and they have given their consent and agreement to the terms of their
child being consulted), the child should be offered the opportunity or invited to meet with the mediator and
their consent given to taking part in a meeting with a mediator once the mediator has explained to them the
confidentiality and privacy (and the conditions of it) in a way that the child understands and can agree to.
Any mediator consulting directly with a child or children must have been specifically trained to do so and must
hold an enhanced DBS check; they must also provide appropriate facilities for direct consultation. They must
offer children confidentiality as to any discussions, except where the child discloses an issue of significant harm
and must take care to also explain that if, subsequently, parents ask the court or judge to assist in decision
making, then the judge may wish to know what they have said, or the judge may wish to talk with them about
their views or arrange for someone else to do so.
Where a mediator suspects than any child is suffering or likely to suffer significant harm, they must ensure that
the child understands that another person, responsible for the safety of children, will be informed and, unless it
would place the child at further or immediate risk of significant harm, the mediator must talk to the parents
about getting help and advice. In any event, mediators must also inform parents (except where in talking with
the parents it would place the child at risk of immediate or further significant harm) that they have a duty to
refer the matter to an appropriate agency. See appendices 2 and 3 for further information.
Where mediators consider that client parents are acting, or proposing to act, in a manner likely to be seriously
detrimental to the welfare of any child of the family, they must consider ending the mediation, having
discussed with the client parents their reasons for doing so and ensuring that this is outlined in any closing or
future communication.
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Where mediation does take place, mediators must ensure that principles of voluntary participation, fairness and
safety are adhered to and that they ensure the safety of all clients, especially on arrival and departure.
Mediators must also ensure that they endeavour to prevent manipulative, threatening, controlling or
intimidating behaviour by either client during the mediation.
3.
Conduct of mediation
that mediation is an impartial process and the mediator will conduct it in a balanced and even-handed
way.
Mediators should also provide an outline of the mediation process, and stress that as they conduct an impartial
process and act in a balanced and neutral way, they would prefer not to take details from prospective clients as
to how they individually view the situation, but rather that it would be helpful to know what the prospective
client hopes to achieve via mediation, what they believe to be the most important issues to deal with, and the
reasons for those hopes or objectives.
Mediators should start their process of screening and assessment by stating their responsibility for safeguarding
individuals, especially children, and by asking open and direct questions about whether the prospective client
has any concerns about meeting together with their former partner (see also safeguarding/screening in the
MIAM below). At all times, mediators must remain aware of the importance of maintaining impartiality and
balance in any dealings with clients both before and during mediation. Care must be taken in relation to the
prospective clients opinion of, or narrative around, their former partner and/or their individual perception of
the situation, to ensure the mediator does not become (or be perceived to have become) partial to the view of
one client rather than the objectives and aspirations of both.
Information should also be provided on the mediation process, e.g. an indication of length and average number
of sessions required, and the documentation that will be prepared by the mediator. This should include an
explanation of financial disclosure and the privileged status of the memorandum of understanding or outcome
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summary/statement (and that it is an expression of the proposals reached in mediation and not a binding
agreement), the value of individual legal advice, and how clients may then achieve a binding agreement).
Prospective clients should be provided with the following ahead of any first meeting:
a preliminary information form (which should be completed and returned to the mediator ahead of any
first meeting);
Resolution precedent documents may be downloaded from the Resolution website. Generally, where direct
contact is made by one prospective client, mediators should ask them to ensure that their former partner
makes contact with the mediator (excepting generally where a prospective client is referred for a MIAM see
below). This avoids mediators making a cold contact with a prospective client who may be unaware that their
partner or former partner is considering mediation. Great care should be taken in handling the sensitivities of
first contacts at all times.
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that information shared in an individual meeting that is likely to be pertinent to any subsequent mediation
discussions would need to be disclosed by the client as part of any subsequent mediation process). The
mediators role is not to make judgements about either or both clients and/or their situation, but to assess with
each the suitability of a mediation process given all the circumstances - and where it is not, that each client has
a forward path beyond the meeting that ensures the safety of all concerned. See appendices 2 and 3 for further
information.
First meetings
Good practice dictates that an individual meeting is conducted with each prospective client. Even where the
clients stated preference is to meet together, mediators should explain and ensure that prospective clients are
seen separately in order to carry out an assessment and screening process, to check information provided by
the client on their preliminary information form, and to discuss any special needs or arrangements that would
assist them to engage in the process comfortably and confidently. Individual meetings can serve a number of
purposes and should be seen as an integral part of any mediation process. Mediators should make clear in any
advance or forward information that mediation starts with individual meetings. It is up to mediators to decide
how they will conduct individual meetings and what they will cover in that meeting. Essentially, apart from a
process of screening and assessment, individual meetings also provide an opportunity to prepare clients for any
subsequent mediation; to give individual clients the opportunity to ask questions that they might feel inhibited
to ask in front of their former partner; to get a sense of the mediator and the environment for mediation; and
to receive information about other services of help and support that might help in either preparing for or
supporting them through the mediation process itself. For mediators it provides an opportunity to start a
process of engagement with each client; manage client expectations; clarify priorities and aspirations; and to
gather information about the nature of any dispute and the areas where there may be a level of agreement and
an opportunity to de-escalate conflict or at least to establish what is likely to cause conflict between them in
any subsequent joint meeting. Mediators should take care to manage meetings so that they are clear that
although any first meeting is offered on a confidential basis (subject to the exceptions in relation to harm etc.),
any information that is shared that may have relevance in any subsequent mediation would need to be shared
latterly in the joint meetings. Otherwise, mediators should ask questions which assist people to consider what
is important to them to sort out and what they hope to achieve if they decide to mediate, and to make clear
that mediation isnt about what has happened but rather what they would like to happen for the future. The
aim, apart from ensuring that appropriate screening and assessment has been carried out is to prepare
individual clients so that they can start their joint mediation process appropriately informed, engaged and with
confidence. Generally, first meetings and MIAMs should be conducted in similar ways (see below).
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hour, and should be charged for accordingly. (The FMC guideline suggests that mediators should not charge less
than the current legal aid rate).
Wherever possible, appropriate and practicable mediators should offer a MIAM to both the applicant and
respondent, even where the prospect of mediation might seem slight, as it is also important that individuals
have an opportunity to consider the other options available to them and to discuss any other information
needs they may have and for which the mediator may signpost.
Mediators should consider carefully how they can best and most economically provide information to referrers
and to prospective attendees about the purpose of MIAMs, and consider the means by which they will gather
information ahead of the meeting in order that they may use the time spent with the attendee to best
advantage. This may include:
A short, preliminary information form to be completed by prospective clients and returned to the
mediator (bearing in mind that attendees may not wish to provide a great deal of personal or sensitive
information prior to a MIAM).
Mediators should provide information about the purpose of the MIAM, ensuring that prospective attendees
understand that it will provide an opportunity to consider:
Whether and what other processes of dispute resolution might be available and suitable for them. (Note
that it is the mediators responsibility to familiarise themselves with information about other forms of
family dispute resolution and to be able to discuss these options accurately with any potential client.)
Any information they might need in relation to their circumstances, e.g. the effect of separation for
children, parenting apart, the legal process, and signposting/next steps information pertinent to their
circumstances, e.g. in relation to debts, housing/ accommodation, benefits, personal professional support
services etc.
Mediators need also to ensure that information is provided in a neutral and mutual way, bearing in mind that
they may subsequently be acting as mediator with the two people whom they have met separately.
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Where it is the case that information is shared in an individual meeting that relates to issues of abuse or harm,
mediators must (in the case of safeguarding of children) consider appropriate referral to childrens services.
Where what is reported raises issues of immediate, serious or significant harm then a mediator should refer
immediately.
In the case of vulnerable adults, mediators should provide information in respect of ensuring protection from
abuse, harm or violence and provide information about sources of local help and support. Where this is the
case, the mediator is under no obligation to share with the other person what has been said. Mediators should
also bear in mind that their role does not require them to make judgements about whether there is or has been
abuse in a relationship but to act appropriately to ensure information about personal protection from harm or
abuse is provided to the person who has reported or alleged harm or abuse. See appendices 2 and 3 for further
information.
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the specialist mediation service offered by Reunite International and provide information to the prospective
client. (See also the section on international parenting below).
Generally and otherwise, mediators are reminded that they can (and should) discuss with their PPC any request
or consideration being given to conducting a MIAM via telephone.
Appropriate arrangements for waiting especially where either client has voiced concerns about seeing
or meeting with their former partner in the first instance. Reception staff should be properly briefed to be
able to welcome and arrange waiting for each client.
Mediation rooms should be comfortable and mediators should ensure that all required documentation
and resources are available within the room.
Mediators should check that there is easy exit from the room for both clients and for themselves (and
that they have properly briefed support staff and have a strategy in place should any issue of abuse arise
during the mediation).
Wherever possible, mediators should have an appropriate and private space available should either client
need to take a break during the mediation meeting.
At a first meeting mediators should ensure that both clients are clear about the principles and conduct of the
mediation and are willing to sign the agreement to mediate, which must be signed before starting the
mediation process. Care should also be taken to ensure that arrangements for payment have been discussed
and agreed before commencing the first mediation meeting.
Mediators should then:
establish the issues to be discussed and resolved, taking particular account of the needs of any children;
begin to discuss with the clients the priority issues, establishing whether there are short-term matters to
be dealt with and planning with the clients the medium- and longer-term issues and priorities to be
considered.
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emphasise that, whichever route they choose to settle financial issues between them, an open disclosure of
finances will be required.
A growing number of clients now download the form E financial statement for themselves from the Ministry of
Justice or HM Courts and Tribunal Service websites, or may have been directed to or provided with it by a/their
solicitor prior to choosing or coming to mediation. Because the HMCTS form E is primarily for those applying
for a financial order following a separation or divorce, it is not particularly mediation-friendly and includes the
opportunity to set out, for example, standard of living and behaviour and conduct issues (although it also
makes clear that this will only be considered in very exceptional circumstances). That might prompt further
conflict or misunderstanding between the clients, or an expectation or fear that they will be going to court.
Mediators using this form should therefore ensure that they explain carefully and fully to the clients the
purpose of the form generally, and that the questions set out at Part 1 (factual details that the mediation
clients will already have provided), Part 4 in relation to conduct or behaviour, standard of living etc, and at Part
5 (order sought) do not need to be completed by them for the purposes of mediation. As an alternative they
can be removed before giving the clients the form to be completed, simply asking them to note their name at
the top of Section 2 - where details of financial disclosure start. It can also be useful to spend some time with
the clients agreeing what sections of the information required actually will apply in their circumstances (not all
mediation clients will have second/other properties or business assets or directorships). This can reduce the
worry that clients may have about the enormity of the information asked for; help to clarify exactly what
applies to their circumstances; and, by reducing the amount of information that is actually going to be required,
make the disclosure process feel more manageable for clients. It can also help identify where one may have a
concern about assets or liabilities that they are not sure about or are concerned may not be disclosed or are
being hidden by the other in which case, mediators can reiterate the importance of full and frank disclosure
and can note what the concerns are for discussion in any meeting to record financial disclosure.
Although Resolution produces a template mediation form E, it is up to mediators to consider which form for
gathering financial disclosure will work best for the clients, in their local area and with colleague solicitors who
may be latterly charged with checking and advising on financial disclosure made in mediation, and bearing in
mind that if the clients latterly require a court route, they may be faced with repeating the recording of
financial disclosure information from the mediation form E to a court form E. However mediators choose to
gather financial disclosure from clients, they should bear in mind the importance of ensuring that it is a robust
process and to a standard equivalent to that which would be required by a legal process or court-scrutinised
route, unless as otherwise agreed and recorded by both clients.
The Financial Remedies Working Group established by the President of the Family Division is currently
considering a modified form E. Any update or amendment to either the form E or the Resolution Mediation
form E will be notified to mediators.
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The issue of pension valuations remains a difficult one for the purposes of recording financial disclosure as it
can take considerable time for documents to be produced. Mediators should discuss this fact with clients,
suggest that they contact the pension provider as soon as is possible and enquire as to the expected length of
time it may take to get a pension valuation.
Generally, a gap of not less than four weeks should provide clients with sufficient time to gather most of the
information and documentation that they need in the absence of a pension valuation, and mediators should ask
clients to use their most recent annual pension statement unless and until they receive a valuation. Clearly, this
will vary between individual clients and mediators should plan with clients according to their individual and
joint situation.
Check through each one, noting any areas of discrepancy between each clients recorded figures, missing
information that will need to be provided and any other features of note.
Copy both forms in order that the mediator and each client have a set of both forms (and, if provided,
any supporting documentation).
Optionally, mediators may wish to draft a pencil schedule of major figures as an aide memoire for
themselves in the meeting with the clients, and/or a more detailed summary if a case is particularly
complex.
At the meeting, mediators should, as in all meetings, first check with both clients whether any matter has arisen
since the last meeting that may need to be dealt with ahead of the scheduled recording of finances.
Mediators should then:
Explain the use of the flipchart and check that each and both clients are comfortable with the recording
of their finances on it.
Explain that they will transcribe the information once listed on the flipchart into a draft open financial
summary/statement and send it to each client as a working document for the remainder of the
mediation process and until financial disclosure is complete.
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Explain that they have copied both form Es or other financial form to be used so that all will have a copy
of each, and ask that clients work with them on a page by page basis to record their joint financial
situation.
Financial information provided by both should then be recorded on the flipchart to set out:
Assets.
A family budget of income and significant outgoings this last relates to the here and now future
income/outgoings/budgets should be reserved to discussions relating to options for the future as part of
reality testing any proposals the clients are considering.
Some clients ask or want to use their mobile phones/other device to photograph the flipcharted
information pending receiving the transcribed draft open financial summary/statement prepared by the
mediator. Where it is the case that the flipcharted information includes information in respect of options,
proposals etc., mediators should ensure that the flipchart sheets are marked as Without Prejudice to
avoid any confusion about the status of the recorded information.
Resolution mediators, as family specialists, will have a clear understanding of what needs to be included in any
financial disclosure and how to check out areas of discrepancy, uncertainty or missing information. Mediators
should also ensure both clients have a clear understanding of the information recorded and why it is required.
An important part of recording financial disclosure is for clients to be properly informed about their own
finances and confident in their ability to negotiate together towards developing options for settlement. It is
usually helpful to emphasise the two-stage process as follows: (1) provision of financial information (which
should not create any expectation of division or financial provision), and (2) discussing options for division
and/or financial provision.
Mediators have a responsibility to ensure that they assist clients in making a full and frank disclosure of their
finances. However, it is not the mediators role to interrogate. Where it appears to the mediator that financial
information is being deliberately withheld or where either or both clients are unwilling to disclose financial
information, then the mediator should consider whether to end the mediation and to discuss with the clients
alternative means of resolving financial issues between them. Otherwise, financial disclosure should be at a
standard equivalent to that which would be required by a legal process or court-scrutinised route, unless as
otherwise agreed and recorded by both clients.
Gather information about each child as an individual in order to assist parents in planning to best meet
their needs.
Provide information to parents about what is most helpful to children and young people when parents
part (whilst recognising their own professional boundaries).
Set out the factors that can cause emotional harm to children and young people.
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Provide information about services of support and assistance for separated parents, children and young
people bearing in mind that it is often the case that reactions to parental separation are generally
within a normative range. Children benefit most from the support of each of their parents during a family
transition and/or from the support of other significant members of their family or supporters who can be
briefed by parents to provide support in a neutral way.
Mediators should, however, be alert to parental concerns about their childs behaviour that is clearly
outside that which might be considered normal e.g. self-harming, eating disorder, risk-taking behaviour,
drugs, alcohol abuse etc. - and for which parents should be provided with information and links to
specialised services of assistance.
Discussions in mediation about the upbringing of children when parents separate should take account of the
day-to-day care in the unique context of their own family. Parents should be assisted in considering:
What and how to tell their children about their separation and future living arrangements.
How to balance their parenting between each and both parents and the importance of children being
able to grow up in a close and loving relationship with both of their parents, though apart.
How to manage parental communication in a way that best meets the needs of their children and
especially in relation to providing appropriate boundaries for their children.
Sharing information such as addresses as to where their child or children will be when they are with each
parent, and the means for contacting each other.
How new relationships of the parents might best be managed as far as children are concerned.
Arrangements that have significance for children and young people eg for family pets.
Future education, health care issues and any special needs relating to their children.
Reality testing arrangements they are considering in the context of their growing childrens needs.
Consideration of the importance of taking account of young peoples needs as they grow towards
independence having time to spend with their friends and peers etc.
Wherever it is appropriate, mediators should assist parents in setting out their aspirations as separated and cooperative parents in the memorandum of understanding or annexed to it as a parenting plan.
Parenting plans
Parenting plans should not be a means of simply setting out the metric of separated parenting the time
children will spend with each parent - but a statement of how parents hope to raise their children though apart.
A parenting plan outline is available on the Cafcass website, and may be used to assist parents in thinking
through what they need to consider in making arrangements for their future parenting. Rather like a form E, the
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parenting plan needs to encompass everything that might need to be considered by any set of parents, it is
therefore a very comprehensive document. Parents can complete the plan in hard copy or electronically and it
can be helpful for parents to do this during their mediation, aided by the mediator in discussing and deciding on
what and how they intend to record their decisions in the plan outline. Alternatively, mediators may assist
parents in reaching arrangements to be recorded in a parenting plan outline that is drafted by the mediator as
an outcome document from the mediation.
There is particular policy emphasis being placed on the use of parenting plans as part of the overall reform of
family justice. It is intended that, wherever possible, parents should give consideration to the drafting of a
parenting plan to assist them in having a framework that helps them to parent their child or children to
adulthood even though they no longer live together.
Parenting plans will not carry any evidential weight in court proceedings but parents may attach a copy of any
existing plan to their C100 application if they make such an application.
Developing options
Once mediators and clients have gathered all the information that is needed to make informed decisions about
the future, clients should be assisted to consider all the options that may be available to them. Mediators must
take care not to provide clients only with options that they, the mediator, believe might be an appropriate
outcome, but they can assist clients by providing other options that the clients may not have thought of or put
forward, so long as they avoid any indication that the option suggested is a preferred or better potential
outcome. As clients work towards achieving an outcome, their preferred option should be carefully realitychecked and information given where an option being considered may fall outside that which a court would
order or approve. Mediators should also be alert to where and when it would be helpful for clients to seek
individual legal or other advice and encourage clients to do so.
Practicalities
As stated above, it is important to carefully reality-check options being considered. This must include
affordability and workability in relation to any future financial plans or proposals under consideration. If the
clients are considering new or re-mortgages, releasing of one partner from the mortgage etc., they should be
encouraged to seek such information and advice as they require to ensure that they will be able to do so, and at
what rate etc. Mediators should be aware that with new arrangements in relation to mortgages in particular,
the amount of loan available and obtaining a mortgage offer may take time and may not be at a level that
either or both clients may expect or hope for. Future financial outgoings should also be tested to ensure
affordability. If gaps or shortfalls are evident and clients still wish to proceed, the mediator should ensure that
they record, as a caution in the memorandum or outcome documentation, that there is a shortfall or gap which
has been discussed and will need to be addressed by the clients.
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Recording
Any written record undertaken by the mediator as part of the mediation process is open to the clients scrutiny.
Mediators should explain this to clients and, if note-taking, should keep such notes to the bare minimum of
facts, tasks yet to be undertaken and any other information that assists both clients and mediator to progress
the mediation. Mediators may wish to consider whether they should send clients a brief and balanced summary
of discussions and tasks to be undertaken between meetings as part of client service. Any summary provided
should be one document sent to both clients, separately if they prefer. Mediators who choose to do so should
also ensure that their fee information reflects this, or that any such correspondence is costed into their overall
fee. Clarity around the confidentiality of any individual discussions, which are generally best avoided if possible
but occur at times (for example for assessment or screening, in first preparation meetings or in a shuttle
mediation) is necessary, and any notes of such discussions should be clear about this, as should the agreement
with the client about the nature and disclosability or otherwise of such notes. Generally, all mediators are
reminded that family mediators may not keep mediator secrets or individual confidentiality.
It may also be helpful to provide inter-meeting summaries to the clients solicitors, so that they are kept
informed about progress and are better able to support their respective clients through the process. The clients
consent should be obtained in advance and the fact that their solicitors may charge for reading the summary
should be made clear and taken into account. The basis on which the information is disclosed should also be
considered carefully in the context of confidentiality and privilege - and documented appropriately.
For professional practice purposes and particularly when working towards accreditation/ competence
assessment, mediators should also keep a brief professional practice note. This should record:
a brief overview of the situation and the issues brought to the mediation;
what went well, and what, on reflection, they might have done differently; and
what areas of professional practice they would like more information or guidance about.
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Professional practice notes are kept separately from client files as they provide an aide memoire on practice
issues for discussion between the mediator and their PPC, and as a means of preparing their accreditation
portfolio. If they are for the mediators benefit and therefore belong to the mediator rather than the clients,
then they need to be suitably anonymised and may not be charged for.
In these circumstances, the legal obligation over-rides any objection the individual may have.
Disclosure is also permitted if it is likely to assist in the prevention, detection or prosecution of a crime and a
failure to disclose would be prejudicial to those purposes.
Schedules 2 and 3 of the Act set out the circumstances under which the processing of personal data may be
considered fair and lawful (the principles). The main principles are that you must:
have legitimate grounds for collecting and using the personal data;
not use the data in ways that have unjustified adverse effects on the individuals concerned;
be transparent about how you intend to use the data, and give individuals appropriate privacy notices
when collecting their personal data;
handle peoples personal data only in ways they would reasonably expect; and
From time to time mediators have received requests from clients or former clients to provide information
about the data the mediator holds about them. This is known as a subject access request. Generally, people
are entitled to be informed of what personal information is held about them and to be provided with it,
including how the information was obtained. Mediators who receive such a request are entitled to ask for a
reasonable fee or payment to cover the cost of producing such information (recommended to be 10 but it is
possible to charge more according to how much work is involved in researching, preparing and providing the
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information). However, if the information contains information about another person, then the information
cannot be provided without that persons permission. Generally, if the client hasnt specified what particular
information they are seeking, then it can be useful to seek clarification of what it is they want to be provided
with. Further information in respect of professional duties in relation to Data Protection is available from the
website of the Information Commissioners Office.
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The financial schedule should set out the clients finances clearly (including details of account/policy
numbers/references) and any significant points flagged up including where there is any information still to be
provided/not yet available. The schedule/s should include all assets and liabilities, income and outgoings, and
details of the documents seen with copies of these, and the clients individual (mediation) forms E or other
financial form attached if required.
This document is signed by the clients rather than the mediator as an indication that it is their agreed financial
disclosure.
Variations disclosure
Obtaining financial information, particularly in relation to CEV/pension valuations, can cause considerable
difficulties in mediations. Where it does not prove possible to obtain a valuation but the clients wish to proceed
with their negotiations, or clients state that they do not wish to deal with any pensions, mediators must make
clear that as pensions can represent a significant family asset there is a danger that any proposals reached in
regard to their finances may be set aside once a valuation of the pension is made. A caution should also be
placed in any documentation as to the fact that pension information has not been made available or that
clients, having received information about the importance of pensions, have stated their wish not to discuss or
deal with any pensions and that the clients need to be aware of the effect this may have on any proposals
reached/recorded.
Occasionally, clients may decide that they wish to proceed as far as is possible in their negotiations even
though they are waiting on a pension valuation/CEV and especially if they are aware or have been informed
that information may take months rather than weeks to be available. Having provided information about the
importance of pensions, mediators should consider carefully with the clients whether they should continue
their negotiations on that basis, or whether they should re-schedule the mediation process to a time when the
information is going to be available. Whatever the case, mediators have a duty to ensure that clients are
provided with the best possible service and one that does not result in proposals that are unfair or cannot be
taken forward to a workable or binding conclusion as a result of missing financial information. It may be
possible to discuss options in respect of pensions in terms of principle without specific values, for example, with
the details to be finalised when CEVs are available. That will depend on the circumstances of the individual
case.
As noted earlier, where clients decline to provide full information on any aspect of their finances, or the
mediator has a concern that disclosure is being deliberately withheld, they should consider with the clients
whether to terminate the mediation. If so, they should provide clients with a written confirmation as to the
reasons for ending the mediation and a note of any proposals outside of the financial matters that have been
reached in the mediation. If this is provided as a memorandum of understanding, the mediator should record
that the mediation was ended as it was not possible to obtain full financial disclosure and record only those
proposals made in relation to non-financial matters.
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Where mediators have any concern in relation to allegations - or potential allegations - of a fraud or other
criminal offence, or a money laundering offence, they must manage the situation in accordance with legal and
regulatory duties.
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purpose, even though it happened to disclose that one or other party had engaged or was
engaged in money laundering activities (eg a VAT or tax fraud). For the reasons we have
already given, the issue or pursuit of ordinary legal proceedings with a view to obtaining
the court's adjudication upon the parties' rights and duties is not to be regarded as an
arrangement or a prohibited act within ss327-9.
Mediators should be alert to the possibility of money laundering, fraud and other criminal intent, and if in
doubt about any particular situation should be in contact with their PPC in the first instance and should also
consider what to do in accordance with their firms money laundering reporting procedure (if applicable).
Mediators should note that requirements and arrangements in regard to money laundering may be reviewed
and/or changed and should take responsibility to ensure that they keep currency of information about this
aspect of law and practice. For more information see the Law Society practice note guidance in relation to
money laundering.
Variations - documentation
Occasionally, clients prefer not to have a memorandum of understanding, or their mediation may not have
included finances and therefore they do not need to make financial disclosure. Early in the process, mediators
should discuss the clients wishes and requirements in respect of the documentation that reflects and records
the outcome of their mediation.
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This might be by way of a confidential, legally privileged, without prejudice letter or a confidential and legally
privileged outcome statement or summary. Mediators should take care to ensure that where they do not
provide a full memorandum of understanding, they ensure that any documentation they do provide is
appropriately headed to indicate the status of the document.
Payments on account
Mediators may take payments on account if they have appropriate arrangements to do so, and if that is
provided for by the terms of engagement agreed with the clients. They should ensure that they keep a detailed
breakdown of time spent. If mediation should end or break down ahead of the time the client/s have lodged
payment for, mediators must ensure a prompt return of any outstanding client funds and provide a detailed
breakdown of costs incurred. Mediators should also be aware that as mediation is a voluntary choice, they
should also consider whether taking payment at the end of each session is a more appropriate means of
indicating and confirming that it is the clients choice as to whether they will continue in a mediation process at
the conclusion of each meeting.
Non-payment
Generally, mediators should not send documents until payment has been received from both clients. However,
from time to time it is the case that one client provides payment but the other does not. In this case, mediators
must provide the client that has paid with the documents (as they have been paid for) unless the terms of
business which the clients have each signed provide otherwise. Mediators should contact any client who
withholds payment to discuss the reasons why this is the case and to consider with the client how payment can
be made/collected.
In the case of non-payment for meetings, mediators should inform any client who has not made payment that
the mediation cannot continue until payment has been made.
A consensus has been reached on the issues which the clients have brought to the process.
It becomes apparent that either or both clients lack capacity to take part or to negotiate together or to
reach a workable, fair and reasonable outcome.
There is an allegation made in regard to harm or abuse, whether between adults or in respect of a child
and the mediator decides that it requires appropriate protection action. Here the safeguarding guidelines
must be followed.
Information is disclosed, an allegation is made or the mediator suspects fraudulent or criminal intent on
the part of either or both clients.
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The mediator believes that for any reason related to the principles of mediation, it is inappropriate to
continue.
The clients individual or joint circumstances change rendering continuing mediation inappropriate in the
short or medium term (e.g. pending a property sale or other financial situation, the illness of one or other
client).
Where a decision is made to end the mediation, the mediator should ensure that they have discussed with
clients the options that remain available to them to resolve any remaining issues or conflicts and ensure that
they each and both have an onward destination or immediate next step beyond mediation.
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4.
It is important for both solicitors and mediators to understand the critical nature of working together to assist
clients in resolving matters between them. Mediation is not a competitor to solicitor practice and neither
mediators nor solicitors should behave as though the client or prospective client is making a choice between
solicitor service (collaborative practice or any other solicitor-led service) or mediation. People need tailored
information and assistance to understand the ways in which they might resolve the issues they have. Where
solicitors and mediators work closely together the outcomes for clients are likely to be improved and both
solicitor and mediator stand to gain from client recommendation as a result.
The requirements of the Children and Families Act 2014 make clear that people will be expected to consider
mediation before issuing proceedings. However, solicitor members are also reminded that Resolutions own
Code of Practice requires that they inform clients of the options mediation, collaborative law, family law
arbitration as well as other options such as counselling, family therapy, round table negotiations, and court
proceedings. The Law Society Family Law Protocol has a similar requirement and also endorses the Resolution
Code of Practice.
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the earlier a client is referred to a mediator in order to hear about and consider whether and if mediation might
be appropriate for them, the better. Solicitor members may consider that an assessment as to whether
mediation is appropriate should be made between the solicitor and the client. However, solicitors are working
with a single client and not both and the dynamic which exists between the client and solicitor may make it
very difficult for an appropriate assessment to be made. The responsibility for making an assessment as to
suitability for mediation (excepting where it is clear than an exemption applies) lies with the mediator. This is
because mediators will be making that assessment with each and both clients. The solicitors responsibility is
therefore to provide accurate information about mediation (and the exemptions to and reasons why it might
not be appropriate) and an encouragement to find out about mediation. Solicitors should also inform clients
that they may be required to attend a MIAM, or encouraged or ordered to do so by the court in order to be
informed about mediation (and other forms of dispute resolution that may be available to them) and to
consider with a mediator whether their particular circumstances are appropriate for a process of dispute
resolution. But it will remain the clients choice as to whether they take up the opportunity to mediate matters.
Resolution member solicitors should be aware that there is or can be variation in the way in which mediators
conduct MIAMs locally and solicitors should ensure that they have an understanding of how a referral for one
should be made to their local providers. Resolution best practice standards require mediators to conduct these
meetings to a high standard of client service and that usually a MIAM will take between 45 minutes and an
hour (and for which there is usually a charge). Solicitor members should note that MIAMs will not be conducted
by telephone (except in rare and/or exceptional circumstances).
Mediators do not provide information about the clients decision not to undertake mediation. It is also the case
that a mediator may decide that mediation is not appropriate for a range of reasons similarly, mediators do
not provide information as to how that decision has been reached to either client, to their solicitors or to the
court.
Mediators will generally and as a courtesy inform solicitors if clients decide to enter a mediation process but
will not report to the solicitor any aspect of the discussions between the clients in mediation unless the clients
agree that the mediator should have contact with their solicitors, and on what terms.
During a mediation process, mediators will encourage clients to seek individual legal advice on any aspect of
their discussions where it is pertinent to do so. Mediators will provide information about the legal process and
general legal principles and associated matters (e.g. the operation of the CMS - formerly the CSA) but do not
provide any individualised advice. It is therefore very important that clients are able to take advice as and when
they need it. Mediators will also explain the importance of having legal advice and the solicitors responsibility
in providing individual best interest advice to clients, whereas in mediation, people are seeking to make
proposals that best meet their collective needs and especially those in relation to the future parenting and
needs of any children.
Proposals made in mediation are legally privileged and without prejudice the privilege belongs to the
participants to the mediation and together they may choose to waive it. The confidentiality and privacy of
discussions within the mediation, however, remains with the mediator and clients, as should be clearly recorded
in any agreement to mediate. Even if the clients choose to waive privilege, confidentiality and privacy, the
mediator may enforce the confidential and private nature of the discussions since they are a party to the
agreement to keep discussions confidential and private. This is so except where an order of the court or the law
imposes an overriding obligation of disclosure.
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Participants in a mediation are informed that they will be required to make full and frank financial disclosure
and that such disclosure is made on an open basis. During a mediation process where clients are dealing with
financial matters, mediators will prepare an open financial summary of the participants financial situation from
their completed forms E and from documentation provided to evidence the information which has been
provided by them in their respective form E. The summary may be provided in either draft form (where financial
disclosure is not yet complete) or in final form, which they may take to their legal advisers, independent
financial advisers or other professionals in order to discuss their financial situation. They will continue to use
the draft summary during the process of mediation as a means to consider their options for resolving financial
issues between them. Mediators do not verify documentation provided by participants but will explain that
their respective solicitors may need to do so and will detail and attach copies of documents seen to the
summary document if so agreed with the clients.
On completion of the mediation process, mediators will generally supply a memorandum of understanding or
outcome summary that details the proposals made within the mediation and on which clients will require
independent legal advice, and will usually instruct their solicitors to draft a consent order in suitable terms.
Mediators will also detail in the memorandum any other legal matters that will need to be considered by clients
with their respective solicitors (e.g. wills, tax considerations etc.).
It should be noted that there is variation in the presentation and content of mediation documents. What is
outlined here is the best practice standard required by Resolution of its mediator members.
For specific guidance in relation to solicitors being directly involved in a mediation process see p39.
adhere to the requirements of the Code of Practice, which makes clear the importance of informing
people of the options they may have for resolving matters between them;
be able to discuss accurately and appropriately the range of family dispute resolution options that are
available and encourage clients to find out about whether mediation may be appropriate for them;
ensure that they are aware of the range of mediation providers in their locality, what they offer and how
they would expect any referral to be made;
endeavour to support their client in a mediation process and not to disturb any mediation process by
inappropriate correspondence in respect of matters known to be in discussion in mediation.
Responsibilities of mediators
In order to provide the best client service, mediators should carefully consider the role the clients legal advisers
have and the importance of creating a co-operative working relationship that best aids the clients. This will
involve:
Whether and how the mediator will keep in touch with their solicitors or with any other professional who
is working with the couple as part of their mediation process.
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As a matter of courtesy, mediators should inform solicitors when they have been in contact with a client
in regard to a mediation process and/or if a mediation process is about to be undertaken, provided they
are authorised to do so by the client/s.
Otherwise, mediators should agree with clients whether it would be helpful for the mediator to send
solicitors any updated information as to progress of the mediation, a note on referral to solicitors for
individual advice and the particular areas/subjects for such advice, and copies of mediation
documentation.
Mediators must ensure that any contact they have with legal advisers is in a neutral and balanced way
and have the agreement of both clients as to the level of any contact.
Mediators must also remain observant of the principles of mediation and ensure that any contact with
legal advisers does not breach fundamental principles of practice and that the status of any
communications is clear in respect of confidentiality and privilege.
Involving lawyers more directly in the mediation process is dealt with below.
5.
Thus far we have has set out the mediation process as it is usually expected to be conducted. However, each
clients situation is unique and will require, within the framework of mediation principles and process, a bespoke
approach. Family mediation is also a young profession and new or varied means of design and delivery within
the principles of mediation are emerging. Where a mediator believes that varying their approach to the process
is appropriate, they should, in the first instance, discuss their plan with their PPC and follow the guidance given.
At all times, they must first check that their planned approach does not breach any of the fundamental
principles of mediation or the FMC Code of Practice. Examples of variations might include:
involving others in the mediation process who the mediator believes have a substantial or meaningful
part in the conflict or in the potential resolution of any conflict;
any kind of shuttle mediation process (especially where this may relate to an abusive relationship
between the clients);
any other client situation where the mediator believes that mediation has a good chance of success but
requires a variation in the way in which it will be conducted.
Set out below are some of the more commonly used/considered methods of practice and practice
considerations.
Co-mediation
Co-mediation can be an effective means of conducting mediation where:
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A gender-balanced team of mediators might afford a valuable resource or model for those who are in
high conflict as a result of the ending of their relationship.
The balance between mediators from different professional backgrounds might assist in the resolution of
the particular issues in a mediation (e.g. an IFA mediator or psycho-therapeutically trained mediator
working with a mediator from a legal professional background).
Support is needed for a new mediator, working with a more experienced mediator.
There is a need to conduct the mediation as a shuttle process for all or at least part of the mediation
(where this choice is made because of issues of abuse between clients, unaccredited or less experienced
mediators may wish to consult with a PPC as to the appropriateness of a shuttle co-mediation).
Resolution encourages all mediators to consider co-mediation as a valuable model of practice and one which
may afford particular assistance to some clients.
Where mediators intend to offer co-mediation, they should ensure that:
They discuss with prospective clients the potential for co-mediation and why it may be of particular
assistance in their mediation.
They properly plan and set up any co-mediation and ensure that they and their co-mediator have
prepared to work as a balanced team rather than as two individual mediators.
Clients know that both mediators work as a balanced team rather than as mediator and expert.
Where it would be of assistance, they talk with a PPC to ensure a professional approach to co-mediation.
Shuttle mediation
Shuttle mediation refers to mediation conducted with clients in separate rooms for some or all of the
mediation process with the mediator or mediators conducting the mediation by going between the participants
to facilitate their negotiations.
It has been perceived as a suitable means of offering mediation where there is or has been abuse within the
couple relationship. All mediators should be aware that using a shuttle model does not, of itself, guarantee
client safety (particularly away from the mediation) or ensure equality of negotiation between participants. At
present, there is no national standard for it, or the practice of it by mediators. All mediators should therefore
discuss with their PPC any plan to conduct shuttle mediation.
There are a number of very important considerations in relation to shuttle mediation. Mediators should ensure
that:
They do not breach the fundamental principles of mediation or the FMC Code of Practice.
They make an appropriate assessment with the clients as to whether shuttle mediation is or would be
appropriate, which includes ensuring that a screening and/or assessment process is undertaken before
and during any mediation as the use of shuttle mediation does not necessarily resolve issues or
guarantee equality of discussions or negotiations in a mediation.
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They are careful not to hold confidences or mediator secrets as part of a family mediation process
conducted as a shuttle mediation. This requires any mediator acting in a shuttle mediation to have
explained carefully to each and both clients that this is the case and to ensure that agreement has been
reached in relation to any discussions held separately with each person and how any information will be
shared.
If the mediation is contracted and conducted under civil/commercial mediation rules (and the mediator is
suitably trained and qualified to conduct such a mediation) because, for example, the primary conflict to be
resolved relates to a family business or the mediation is commissioned on such a basis because of financial
complexity, then the mediator/s may make suitable arrangements in relation to confidentiality of separate
discussions. However, mediators must be clear as to the organisational or professional rules by which they are
conducting the mediation and therefore the appropriate code of practice they are working to and complaints
route for any complaint that cannot be resolved by the mediator by their practice.
Mediation where there is or has been abusive behaviour in the couple relationship
Where clients have admitted, disclosed or acknowledged that there is or has been abuse within their
relationship and where they still wish to mediate, mediators must take considerable care to discuss with each
client whether the process would be appropriate and if so, how it is to be conducted.
It is possible for mediators to consider whether a form of shuttle mediation may be appropriate, and if so, they
must still seek to establish whether in doing so they can ensure:
Each clients protection from (further) abuse or harm can be assured. (This will be particularly important
to consider if clients remain under the same roof together.)
Each client has appropriate capacity to take part, even if the mediation process is undertaken in a shuttle
model (mediators should be aware of the effect of controlling behaviour in abusive relationships that
may result in an individuals inability to make truly independent decisions).
They have discussed other support or assistance that may be required to ensure suitable help for either
client during a process of mediation.
They consider working with a co-mediator as a suitably balanced professional team to best manage all
the circumstances.
They are particularly alert to the issues that may arise in relation to confidentiality and impartiality.
Please note that where there have been issues relating to the safeguarding of children and where parents wish
to mediate, mediators must always ensure:
That there is no current investigation by local authority childrens services (in which case mediation
should be deemed unsuitable).
That where there has been an investigation, the mediator has seen any outcome report, the terms of any
contract or agreement between the parents and the local authority, or any court order that clarifies the
nature of the issues involved and the outcome (and that a decision on suitability for mediation is based
on the information available).
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Where a key worker remains involved with the family, they seek to discuss with the parents/carers
whether and how the key worker should be informed or involved in any subsequent decision to mediate.
The support of solicitors may assist the clients in engaging confidently in a mediation process.
There are or have been particularly high levels of conflict between the individuals.
There has been a history of abuse between individuals and where they want, if at all possible, to resolve
matters between them but there are concerns about capacity and balance between the clients.
All mediators need to consider carefully the direct involvement of solicitors in a mediation process, including:
A clear understanding by each solicitor and client as to mediation and the involvement of solicitors
within it.
When solicitors will be involved for one meeting/throughout the mediation/as felt necessary and
appropriate/at the conclusion of the mediation as a means of setting out any consent order?
An outline agreement for and with solicitors taking part in any mediation that sets out the expectations
of the mediator, the role of the solicitor/s, expectation of provision of advice to clients privately during
the mediation process etc.
The confidential, private and privileged nature of discussions, and any relevant exceptions.
Mediators should take care that they do not compromise the solicitors relationship with their client where they
may be uncertain as to whether the solicitor would accept an invitation to participate in a mediation process.
Any discussion with clients in regard to solicitor attendance should therefore be on the basis that it would be
for the client and solicitor to discuss together whether it might be possible and practicable in all the
circumstances.
Mediators should also make clear that such attendance will attract additional fees for their solicitors time in
attending.
As already stated, mediators should consider all aspects of involving clients solicitors. They should also take
responsibility to ensure that solicitors are protected from any breach of professional regulations set and/or
required by the SRA should they attend as part of a mediation process.
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Solicitors who receive a request, whether via their clients or directly from a mediator, to attend a mediation
should be aware that participation for anyone is a voluntary choice. They should therefore consider with their
client the purpose of their attendance and whether it is appropriate given all the circumstances.
Solicitors should also be clear as to their role in attending and mediators should provide full information of this
aspect. This may encompass (but is not limited to):
Attending with their client with a view to establishing the issues and matters pertinent to the mediation
process and supporting their client in clarifying such matters.
Attending as observers to the mediation with a view to advising their client on aspects identified as
requiring specific advice that would assist the parties in reaching decisions.
Attending both to support and advise their client (individually and out of the room). This may include
playing a part in assisting in the clients process of negotiation.
Attending with their client for the purpose of drafting a consent order on decisions and proposals
reached in the mediation process.
Mediators should provide a form of agreement in relation to the terms of the solicitors involvement for
discussion and agreement between mediator and solicitor/s.
Conversely, solicitors who in consultation with their client believe it would be useful and appropriate for them
to attend should inform the mediator and suggest that this is discussed in order to explore whether it is an
option the mediator would like to consider with the clients. Similarly and as above, solicitors should take care
that they do not compromise the mediators relationship with clients where they may be uncertain as to
whether the mediator would accept a request for a solicitor to attend the mediation process.
In all cases, this should be understood as a matter for consideration as between mediator, clients and their
respective solicitors. It is therefore good practice that professionals keep in communication on such matters
and wherever possible have local means of keeping in touch with each other in respect of opportunities to assist
clients through the provision of solicitor-attended mediation and/or mediation generally.
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Provide information on the general principles of the law in relation to removal and/or child abduction.
Encourage and recommend that parent to seek individual legal advice as soon as is possible.
Provide information about services of help and support (e.g. Reunite International).
If disclosed in a separate meeting and the mediation is ongoing, remind that parent that all information
disclosed must be shared and discuss with them how that is to happen.
If it is the case that the parent refuses to agree to share the information, the mediator should make clear
that they must share the information with the other parent; that they will give the same information
about general principles and services of help and support; and that they will encourage them also to seek
immediate legal advice.
Explain that mediators have a duty and responsibility to make a referral to the local authority childrens
services where any child is at risk of harm. The abduction or threatened abduction of a child is or may be
deemed to present such a risk of harm to the child and therefore there is a need to make a referral to the
appropriate authorities. It is also the case that in most circumstances a parent who abducts a child will be
committing an unlawful if not criminal act (under the Child Abduction Act 1984). The agreement to
mediate also refers to the committing of or the intent to commit an unlawful, illegal or criminal act as
being exempted from confidentiality.
If a potential client to a mediation discloses this information to a mediator (that is as part of a MIAM or
preparatory meeting) then the mediator should provide the same information referred to above, encourage and
recommend that parent to seek legal advice and, if and when appropriate or necessary, inform an appropriate
authority where they believe any child is at risk of abduction and/or immediate, serious or significant harm
(which may be deemed to be the case if a child is at threat of abduction).
All mediators are reminded that if, where or when it is the case that threatened child abduction may result in
Hague proceedings, they should be in contact with Reunite International, which is funded by the Foreign and
Commonwealth Office and recognised by the High Court to offer mediation in such cases. Reunite also
provides telephone and online advice and support to both the taking away and left behind parent.
Potential for child abduction is a serious matter and mediators must act appropriately to refer or to report to
the appropriate authorities where they believe it is or may be in prospect. Mediators should also be in contact
with their PPC for assistance where they have concerns about the potential for child abduction and the
appropriateness of mediation.
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Check with the prospective clients that this is a voluntary choice for them and is suitable for mediation.
Occasionally, collaborative practitioners may request that a mediator conducts or chairs a four-way meeting.
This may be because:
There are particularly high emotions in play between the clients and the collaborative team believe it
may be of assistance to have a neutral person to manage the meeting.
There are particularly complex legal or other matters that require the considerable attention of the
respective collaborative practitioners, leaving them less able to manage the forward progress of the
meeting.
There are other reasons or concerns that have led the collaborative team to believe that the assistance of
a neutral professional would assist progress.
Whatever the case, mediators should ensure that they carefully consider whether the circumstances are
appropriate for their involvement, and discuss with the collaborative team their understanding of mediation
and the skills/role of the mediator. Mediators should check with both clients as to their agreement that the
involvement of a mediator is acceptable to them. Mediators should then ensure that they have an appropriate
agreement to provide mediation assistance in the context of the collaborative process in which they will assist.
This should include the expectations, responsibilities and role of all those involved (including in relation to fees).
Mediators should seek the guidance of their PPC in relation to involvement in a collaborative process.
Court-referred mediation
All mediators should be aware of the guidance published by Resolution in relation to working with the court
and of the FMC information issued to judges, magistrates and court staff in relation to family mediation.
Generally, mediators must ensure that they do not breach fundamental principles of mediation in offering or
providing mediation services with/to their local court. They should be particularly alert to the fact that the
court environment is an alien, unfamiliar and stressful environment for clients, who may find it difficult to fully
understand the nature of independent mediation. Wherever possible, any mediation process should be provided
away from the court environment and mediators must avoid providing time-limited mediation on the court
premises.
Mediators should also ensure that any suggestion that a child should be consulted as part of the court process
in order to provide information to the court in relation to the childs wishes and feelings should be refused as
this breaches fundamental principles in relation to the childs right to privacy and confidentiality. Direct
consultation with children as part of an adult mediation process is governed by a set of principles and
procedures that should be adhered to in order to protect the child and the parents, and to preserve a clear
understanding of the limits of mediation principles, the process and the role of mediators.
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Mediation precedent documents should not be altered to accommodate the needs of the court to have
information about the process of mediation (and mediators should be aware that this may affect their
insurance cover). Mediators should ensure that clients understand, as in any mediation process, that they may
waive their legal privilege if they so wish and agree in order to assist them in any court proceedings, but that
the mediator will not provide information to the court in regard to the discussions held in mediation.
Consent orders
Recently, there has been growing interest in and enquiries about whether and how mediators might prepare
consent orders following a mediation. This may be because clients have requested that the mediator do so, that
clients are both unrepresented and have no means of being able to take to Court their proposals in a form that
the Court can process or for any other reason. It maybe that the introduction of template orders will provide
the means for people to complete a relevant template with the assistance of a mediator but there are
fundamental issues to be considered in the preparation of such documentation. Firstly, it might be argued that
a consent order cannot be properly drawn for clients unless and until some form of advice has been provided. If
it is the mediator that has provided that, they will be in breach of the FMC Code of Practice. Secondly,
although clients may say that they wish to utilise any draft produced to take to a Court, they may latterly
choose not to and may simply sign the document themselves and which latterly may raise issues in relation to
that agreement. Thirdly, the drafting of such a document, if separated from the Memorandum of
Understanding, may cause the status of that document to be unclear, unless it is stated on the face of it to be
confidential and legally privileged and drafted subject to the clients right to seek legal advice before confirming
their agreement to the terms of the document if so advised.
There is, as yet, no guidance or judgement as to whether and if the drafting of a consent order is or might be
considered as falling into one of the six categories of reserved legal activity and would therefore be reserved
to solicitors or suitably legally qualified professionals. Mediation is not a legal activity (as it expressly falls
outside the regulatory framework of the Legal Services Act 2007) and there is further prospect of confusion for
clients and a risk to those mediators who are solicitors and mediators if drafting consent orders as part of a
mediation.
Mediators who are qualified to conduct mediation under civil/commercial rules and who do so because the
family situation includes matters that would be more properly and appropriately dealt with via a
civil/commercial model, will usually prepare a Tomlin Order at the conclusion of the mediation. However,
where this is the case, the mediator must ensure that they have made clear that the mediation is being
conducted as a civil/commercial mediation and should conduct the process under the rules of their
civil/commercial mediation membership/accrediting organisation.
SRA Guidance on drafting by separate retainer
Mediators will be aware that in August 2015, the SRA issued guidance in relation to the preparation of consent
orders by solicitors who are mediators by way of a separate retainer. The guidance is available at:
http://www.sra.org.uk/solicitors/code-of-conduct/guidance/questionofethics/August-2015.page
Resolution has asked the FMC to consider the SRA information and to issue guidance for mediators in relation
to how the SRA guidance sits with the FMC Code of Practice and particularly Rule 5 Conflict of Interest
(6.1.6/7). As soon as such guidance is received from the FMC, Resolution will ensure that mediator members
are notified.
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Otherwise, mediators are reminded that neither Resolution or the FMC have provided any guidance on the
preparation of Consent Orders at the conclusion of a family mediation conducted under the FMC Code of
Practice and that as such, preparation of Consent Orders by a mediator may breach the Code, (and mediator
insurance).
Discussing the use of new technology/conducting mediation by other or remote means with their PPC in
the first instance.
Considering what training or professional development they might need or could undertake in order to
conduct mediation via use of new technology to a professional and high-quality standard.
The reasons for the use of the new technology and whether it is/would be appropriate - and consider
carefully whether using such technology (including any specialised software packages) is compliant with
the FMC Code of Practice.
Checking with each client whether and if they feel comfortable about the use of such technology.
Careful assessment of the clients and the circumstances in each case. This should include consideration
in respect of abusive behaviours and client capacity, and appropriate screening and assessment as would
be carried out for any mediation. It is not sufficient to assume that mediation via remote or textual
technologies will necessarily remove or deal with abusive or controlling behaviour that may affect the
ability of the victim of such abuse to negotiate equally and/or make decisions free from concerns as to
the possible consequences of doing so.
Careful pre-planning and testing of any mediation to be managed via technology such as Skype
(especially in relation to the reliability of the link), video conferencing etc and clear contingencies for
if/when/where the link fails or is lost.
Managing any online/Skype mediation meetings to take full account of the very different dynamic that
exists in remote meetings/textual negotiation.
Consideration in respect of how issues such as information display and exchange will be managed.
Avoiding the use of Skype where one person can be present with the mediator but the other is not (to
ensure balance and to avoid inappropriate alignment).
Where a mix of technologies is used which encompasses transfers of information by writing or via
discussion forum, that great care is taken to ensure the appropriate status and protection of such written
materials or documents
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For information in regard to the conduct of MIAMs via telephone or other technology please see p17.
Advances in practice, hybrid models and working with families in other settings
Family mediation has application in a broad range of settings and situations. As the use of mediation becomes
more established and better known and understood, it is likely that family mediators may be asked to consider
providing mediation in new ways and/or in a range of new settings. There is some evidence that mediators are
being asked to work in matters relating to inter-generational disputes, Court of Protection matters and at the
cusp of public law children proceedings. It is very important however that mediators act professionally in
responding to these requests. They should, in the first instance, be in touch with their PPC to work through the
appropriateness and suitability of mediation, whether and if it is possible to offer mediation that is compliant
with the fundamental principles of mediation and within the Code of Practice of the FMC; whether they are
suitably qualified and experienced to offer mediation in the particular setting or dispute; and to ensure that
they have made suitable checks with their insurers in respect of continuing validity of their insurance cover.
Resolution thanks Angela Lake-Carroll for writing this Good Practice Guidance, September 2014.
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Appendix 1
Please see next page.
FMC Manual
of Professional Standards and
Self-Regulatory Framework
September 2014
Table of contents
Post-FMCA,
mediators may choose to specialise in one or other area or undertake all-issues mediation, provided
the FMC Code of Practice is followed. Some specialist areas of mediation for instance relating to
direct consultation with children or child abduction will require additional training and qualifications.
After 1st January 2015, mediators who wish to be added to any register approved by the Ministry of
Justice or FMC for carrying out family mediation or for providing mediation information and
assessment meetings (MIAMs) will need to have achieved FMCA status.
already been approved to conduct MIAMs will be able to continue to do so until 31st December 2015,
after which they will need to have gained FMCA.
The Law Societys family mediator accreditation scheme will apply the same standards as those
required for FMCA. Subject to agreement by the FMC Family Mediation Standards Board (FMSB),
Law Society accredited family mediators will automatically qualify for FMCA status.
FMCA family mediators may use the letters FMCA or designation FMC Accredited Family Mediator
and any trade mark which may be agreed for the use of FMCA mediators.
Retaining FMCA status is subject to:
Meeting the requirements to renew accreditation (these are explained in section 3).
Have at least ten hours one-to-one, principally face-to-face support from their PPC, with sessions
recorded in a log countersigned by the PPC. This includes the PPC contact outlined below, but
does not include (a) any time spent co-mediating with the PPC or observing the PPC mediate, or
(b) the normal four hours per year of PPC contact expected of all mediators.
Have (as the first of these sessions) a post-training review with the PPC. This may be organised
by the provider of the initial training or by the mediator independently. The PPC will review the
mediators readiness to mediate and if necessary agree additional measures for gaining
experience before starting to mediate.
Before acting as a sole or lead mediator or representing themselves to the public as a family
mediator (and see a. under Until mediators gain FMCA status below), register with the FMC as
working towards accreditation (this will normally be done via one of the FMC member
organisations).
For their first case as a sole or lead mediator, (a) have a pre-case discussion with their PPC
before starting to mediate or to assess clients suitability for mediation, and (b) hold a post-case
review with their PPC.
additional support that the mediator needs before starting the first session.
Have at least one mediation session observed by their PPC (which must not be a session comediated with the PPC). This must be within two years of completing initial training and ideally
should be near the beginning of the post-training period.
Take a minimum of three cases through to completion. These will need to be written up for
assessment.
Comply with the requirements for continuing professional development and ongoing PPC support
(as applicable to FMCAs).
completed initial training and is registered with the Family Mediation Council as working towards
fully qualified status as a family mediator. S/he is supported by (PPC) as his/her Professional
Practice Consultant.
(b) Enlist PPC or qualified colleague support if any elements of any case are beyond their capability.
(c) Have any mediation outcome documentation, including memoranda of understanding and open
financial statements, approved by their PPCs before being sent to their clients.
(d) Have any court forms relating to their clients signed by their PPCs. This does not apply to
mediators who were approved to conduct MIAMs before 1st January 2015, who may continue in
this role until 31st December 2015.
2.2 Assessment of professional competence
Award of FMCA status is made following an assessment of a portfolio of work assembled from the
period between completion of training and application (as described in section 2.1). The portfolio,
which should normally be submitted in electronic form using widely-available software, must
demonstrate that the mediator meets the FMC professional competence standards at a level that
must be at least competent and should show elements of progressing to proficient (see appendix 3
for an explanation of these levels). The material required in the portfolio is detailed in appendix 1.
Completed portfolios must be sent to the FMC (via the office handling the administration of
assessments) with the current application fee, which covers one assessment. Following submission,
an initial examination of the portfolio will be made to ensure that it is clearly and legibly presented and
includes the materials required in the outline above. Incomplete or incomprehensible portfolios will be
returned to the mediator for amendment.
resubmission.
Portfolios that are deemed to be complete will be allocated to an assessor for formal assessment to
the FMC professional competence standards.
interest; where an assessor suspects that a conflict exists, s/he will discuss the matter with the
schemes chief assessor before proceeding with the assessment.
The assessor will make a rigorous and unbiased assessment of the portfolio to the professional
standards. Any standards that are not met at the competent level, or any failure to meet the portfolio
requirements, will be clearly identified by the assessor, who will make one of three decisions:
A. The mediator meets the required standards and is eligible for accreditation (approved).
B. Additional work is required on the portfolio that can reasonably be completed within six months,
such as the addition of further explanations or an additional case-commentary (accepted subject
to additional work).
C. Substantial work is required that is not likely to be feasible to complete within six months, typically
because the work submitted falls substantially short of the professional competence standards or
none of the cases are suitable (competence not yet proven).
Assessors may make further enquiries if the portfolio suggests that the work submitted is not that of
the mediator, or other forms of impropriety or plagiarism are suspected.
Portfolios will be moderated through examination by the schemes Chief Assessor or by an
experienced assessor nominated by him or her.
examined in depth and discussed with the first assessor. Assessors may also contact the mediator
for further explanations.
Mediators will normally be informed of the assessment decision within six weeks of submitting the
portfolio. If the portfolio is deemed not yet proven or is accepted subject to additional work, the
reasons for this will be communicated clearly and precisely.
encouraged to resubmit at the appropriate point (and where to discuss their portfolio with their PPC).
The Family Mediation Standards Board may examine a sample of portfolios as a check that the
overall process is operating consistently and to the required standard. This does not constitute an
additional assessment and will not delay assessment decisions being communicated to mediators.
2.3 Appeals against assessment decisions
Mediators who believe that their portfolio has been wrongly deemed not proven or requiring
additional work may make an appeal to the FMC, stating clearly the grounds for the appeal.
Mediators are strongly encouraged to discuss potential appeals with their PPC, and will need to
explain the reason if the PPC is not supporting the appeal. Mediators and PPCs are encouraged to
each make a short written statement in support of the appeal (no more than 500 words), but no
material will be accepted for addition to the portfolio.
Appeals must be made within three months of the assessment result. A fee is payable for an appeal;
it will be refunded if the appeal is successful.
The FMC will investigate where there are valid grounds for the appeal. Acceptable grounds include
the use of criteria that do not reflect the professional standards or code of practice, or the guidance
set out in the published portfolio requirements; the criteria have been interpreted incorrectly; and the
assessors have missed or misinterpreted material included in the portfolio.
When an appeal is approved to go forward, the portfolio will be re-examined by an assessor who has
not previously been involved in its assessment.
assessment decision and the appeal submission, unless there are overriding reasons relating to the
nature of the appeal that the reassessment should be carried out without knowledge of one or both.
The decision on appeal will be final.
2.4 Award of FMCA status
The FMC Family Mediation Standards Board will be notified of the names of all mediators who have
passed the assessment process. FMC Accredited Family Mediator status will be awarded provided
that the mediator is in current membership of an FMC member body and is not in breach of the Code
of Practice.
3. Renewing accreditation
3.1 General requirements
Accreditation is held for a period of three years following successful assessment or renewal. At the
end of the three-year period, the mediator will need to make an application for renewal if s/he wishes
to retain accreditation (mediators who are granted FMCA based on existing approvals may initially be
asked to reapply after a shorter or longer period in order to avoid all renewal dates occurring in the
same month).
The basic requirements for reaccreditation are (a) an adequate record of continuing development; (b)
adequate dialogue with a Professional Practice Consultant; and (c) a minimum level of practice.
Mediators must also be in current membership of one of the FMC member organisations, and not
have had their accreditation revoked under the disciplinary process. Details of these requirements
are given below, and a reapplication form, on which all applications for reaccreditation must be made,
will be provided by the FMC.
3.2 Continuing development
The mediator must provide a completed continuing development record (as included with the
reapplication form), which demonstrates that adequate steps have been undertaken to keep up-todate and maintain the ability to practise competently. The record needs to describe (briefly) the
activities that were carried out, why these were undertaken (i.e. their relevance to practice), and the
benefits to clients and to practice that were gained.
The mediator should demonstrate keeping up-to-date with the following, as relevant to his or her
practice:
Development activities may of course cover other areas such as acquiring new skills, learning about
particular aspects in greater depth, gaining knowledge of complementary fields, and advancing
practice and theory.
Continuing development can be achieved through a wide range of means, including accredited and
non-accredited courses and conferences, practice-based activities such as co-mediation, observation
and action-based learning, on-line learning and research, reading, research, and higher education
programmes. There are no restrictions on the kind of activities that can count, but it is important that
they are relevant to the mediators practice, result in relevant learning and benefits, and taken
together provide an adequate level of updating. There are no requirements for development activities
to total to a particular number of hours, although for guidance it is unlikely that less than ten hours per
year engaged in specific development activity will be sufficient. Development should be timely, for
instance when changes in family law are announced mediators will be expected to update themselves
sufficiently quickly so that they are able to continue to provide accurate information to clients.
Activities would normally be expected to be spread across the three-year period (if the period includes
a substantial career break or other period of absence from practice, the mediator will need to explain
how s/he has ensured that s/he is sufficiently up-to-date on returning to practice).
The mediator is encouraged to discuss development activities with his or her PPC. However, the
activities that are chosen and undertaken are the responsibility of the mediator, and do not need to be
endorsed by the PPC. Mediators are strongly advised to record and evaluate activities as they take
place rather than waiting until the point of reapplication.
3.3 Professional Practice Consultants
The mediator must provide a record of adequate support from a PPC. This will normally not be less
than four hours per year, at least two of which must be individual face-to-face sessions (the remaining
hours can be remote or through a small-group session, but not a lecture or seminar).
It is the
responsibility of mediators to ensure that their PPC support is sufficient for the needs of their practice;
this may require more than four hours of contact per year.
The PPC must endorse the application as (to the best of his or her knowledge) a true and fair record
of the mediators development activities, PPC contact and hours of practice, and sign a statement to
the effect that there is no reason under the FMC Code of Practice or the rules governing award of
FMCA that the mediator should not be accredited.
3.4 Minimum hours of practice
A minimum level of practice is expected in order for the mediator to maintain his or her face-to-face
mediation skills. This should normally be not less than fifteen hours per year of direct mediation,
excluding information and assessment meetings or work involved in preparation and recording.
3.5 Levels of activity below the recommended minima
If the levels of PPC contact or mediation are below those stated above or there are any years with
little or no continuing development activity, the mediator should provide an explanation and if relevant
a proposed action plan to ensure that an acceptable level of competence is maintained. Other than
where there is a valid reason such as maternity or paternity leave, illness, bereavement, or a planned
career break, activity below the recommended minimum will be followed up; mediators should note
that it is their responsibility to find the minimum level of work.
Levels of activity should match each other, so that for instance while PPC support and development
activities will not be compulsory during a break from work, the mediator should show how s/he has
ensured that s/he is sufficiently prepared and up-to-date before starting to practise again.
Mediators on extended
periods of leave may apply before or during the period of leave; the FMSB will ensure that mediators
who have a valid reason for not practising are not disadvantaged if their reaccreditation date falls
within the period of leave.
Late applications will not result in an extended period of accreditation, so if for instance accreditation
expires on 31st January 2018 but the application is not made until 31st March, the new period of
accreditation will run to 31st January 2021. Late applications after the six-month period, or any
applications that are late without good cause, will be treated as if accreditation has lapsed.
Where an application does not meet the requirements set out above, the FMSB can ask for additional
information, ask the mediator to propose an action plan that will result in the requirements being met
(see section 3.7 below), or, following unsuccessful recourse to these measures, refuse to reaccredit.
The timescale for resolving matters relating to insufficient applications will normally be a maximum of
six months, after which accreditation will lapse. This period will be extended if delays are caused by
matters beyond the control of the mediator.
The FMSB will ensure that the above allowances are not abused, for instance by mediators who
deliberately submit an application that is both late and weak.
3.7 Lapsed accreditation and action plans
Accreditation will lapse if an application has not been received by the due date, a late application is
received without adequate explanation, or the application is insufficient and the relevant matters
remain unresolved. Mediators may of course choose not to reapply either to take an extended career
break or because they no longer expect to practise as a family mediator.
Mediators who wish to reapply after their accreditation has lapsed for a shorter or longer period will
need to put forward an action plan that will bring them to the required level of competence to practise
at a proficient level. In developing the action plan, the mediator should refer to the FMC professional
standards and code of practice, as well as (for mediators who have been out of practice for a
substantial period) the current training requirements. The contents of the action plan will depend on
individual circumstances and could vary for instance from essential updating and additional PPC
support, through to substantial retraining and/or reassessment. The FMSB will want to see that the
action plan is credible in terms of when the mediator last practised and the level (if any) of updating
that has been maintained.
Following approval of the action plan, the FMSB may reaccredit either immediately or when evidence
has been produced that some or all of the agreed actions have been carried out.
Mediators who have been out of practice for a significant length of time and who have not maintained
a sufficient level of ongoing development should be aware that they may need to undergo full
retraining and reassessment.
3.8 Appeals against refusal to reaccredit
Mediators who are refused reaccreditation after making a valid and complete reaccreditation
application may appeal to the FMC, clearly stating the grounds for the appeal. Mediators are strongly
encouraged to discuss potential appeals with their PPC, and will need to explain the reason if the
PPC is not supporting the appeal. Mediators and PPCs are encouraged to each make a short written
statement in support of the appeal (no more than 500 words). A fee is payable for an appeal; it will be
refunded if the appeal is successful.
When an appeal is approved to go forward, the FMC FMSB will convene an appeals panel that has
not been involved in the decision to refuse accreditation. The panel will examine the decision-making
process leading to the withdrawal or refusal of accreditation. The decision on appeal will be final.
Mediators who have had membership of a MO terminated should note that a successful appeal
against refusal of accreditation will not automatically require that MO to reinstate their membership.
Appendix 1
Portfolio contents
Portfolios must include the following:
An application form, which includes:
The mediators contact details and the name(s) of any practice(s) or service(s) with which s/he
works.
The FMC membership organisation that the mediator is a member of or registered with.
The name and contact details of the mediators PPC (and any previous PPCs if relevant, together
with the dates for which they were engaged).
confirms the case commentaries submitted in the portfolio are authentic, that the mediator has
taken the lead in them, and that the mediator has obtained permission from the clients to use
them
endorses the mediators competence to practise independently to the requirements of the FMC
professional competence standards
Confirms that the material submitted is entirely the mediators own work.
sets the context for the session (if it is not part of one of the case commentaries below);
Case commentaries
Three cases are needed where the mediator has taken the substantive lead, and full or extensive
agreement has been secured. Cases must have started not later than two years before the date of
submission of the portfolio (in exceptional circumstances a further year can be granted with the
approval of the mediators PPC).
The cases must include at least one that is all-issues mediation, two with mediation of children issues,
and two that include memoranda of understanding and open financial statements. Between them the
cases must show evidence of successful, high-quality mediation that demonstrates the ability to
mediate cases through to completion, including both financial and childrens issues, showing use of
the full range of mediation skills identified in the professional standards and portfolio guidance.
The cases must include at least two examples of initial consultations or assessment meetings.
Each commentary must include a brief background to the case and a summarised account of the
process of each mediation session, including the mediators reflection on their interventions. At least
one case which should normally be an all-issues case - must include a complete set of case notes,
session records and correspondence. Case commentaries must be anonymised, and permission
obtained from the clients to use them. A template will be provided for this purpose.
The mediator can make reference to additional cases if these are needed to demonstrate that the
professional competence standards have been met.
Reflective account
A reflective account must be submitted (typically 1,500-2,000 words) drawing on the mediators
practice experience. The account should where possible include reflection on cases that did not go to
completion and what was learned from them. The account must include evidence of managing high
conflict cases. The mediator must demonstrate a real sense of the work undertaken, highlighting key
achievements, skills and knowledge gained since completing mediation training and any evidence
that the mediator wishes to highlight to assessors that is not covered elsewhere within the portfolio.
Inclusion of references to mediation reading and theory are likely to enhance the account.
Case study questions
A set of case-study questions are available at (web site to be added). The mediator will need to
select three of the current five cases and answer the questions on them. When reflecting on these
questions applicants should, wherever possible, draw on similar or related case examples from their
own practice to include in their answers. The suggested response length is 200400 words per
question.
The questions are not intended to elicit a single right answer, but are instead designed to enable the
mediator to show that proper consideration has been given to the situations described, drawing on
knowledge and practice experience. The answers allow understanding to be demonstrated relevant to
the professional standards that may not be apparent from cases handled to date.
Personal development planning and review
This includes (a) a personal development record covering the period since completing initial training,
Outlining learning experiences (including learning from practice) and the learning and development
gained, and (b) a plan for the mediators future development post-accreditation. The record should be
in the same format as provided for reaccreditation.
Appendix 2
The FMC professional competence standards for family mediation
Introduction
These standards apply to the work of family mediators generally, with specific application to
assessment for accreditation.
mediators work e.g. voluntary sector, private practice, law firms, sole practitioner, co-mediation etc.
They aim to avoid assumptions that limit the context in which they can be applied (or make them
hostage to changes in regulations, funding regimes, etc).
Note that the term participants is used to denote the mediation clients rather than being inclusive of
the mediator or anyone else who may be involved in the mediation.
A. Theoretical underpinnings
A1 Understand and draw on theories-in-use that inform the practice of mediation
These include:
theories concerning the impact of separation, loss and conflict on families and individuals
theories of child development and the impact of separation and other family changes on
children and young people
key principles of mediation including independence of the mediator, without prejudice, child
focus, fairness, voluntariness, client competence, confidentiality and its limits, impartiality and
neutrality, and participant self-determination within the relevant legal framework
distinguishing between the process of mediation and employing other forms of intervention.
ways of bringing the perspective of children and young people into the mediation process.
working in accordance with the Family Mediation Councils Code of Practice and with the
procedures of the organisation(s) of which the mediator is a member
operating within the law and following any legal requirements and processes
only undertaking work that is within the mediators competence and capacity, seeking
guidance or recommending alternative sources of support where necessary.
taking responsibility for personal learning and development, including identifying areas for
development, acting to meet learning objectives, and learning from practice.
responding to and addressing cultural and gender issues effectively and sensitively
taking into account, and acting with sensitivity towards, any issues of mental health, learning
disability or other potential barriers to participation in mediation.
applying and upholding the principle of confidentiality and respecting the privileged nature of
family mediation, other than where there are overriding and ethically sound reasons to do
otherwise
C. Mediation practice
C1 Explain mediation to participants
This includes:
being clear about the difference between an initial consultation or assessment meeting and a
mediation session
explaining the different methods of mediation that are available and how they would work.
assessing, initially and on an ongoing basis, suitability for mediation in respect of (a) the
dispute, (b) the participants, and (c) all the circumstances of the case
helping the participants to decide on the appropriateness of mediation for their situation
ensuring that participants are aware of their right to seek independent legal advice.
screening effectively with each participant separately for domestic abuse or harm to
themselves, children or others
notifying appropriate outside agencies, and the mediators PPC, where necessary.
providing unbiased information about other relevant means of family dispute resolution
providing information about sources of assistance for parents, children and families
maintaining (and explaining to the participant) the distinction between information and advice.
identifying and agreeing the issues that will form the agenda for discussion
establishing the principle of balanced participation, and agreeing how this balance will be
maintained throughout the process
using relevant listening, communication and mediation skills to aid mutual understanding and
rapport, help participants to move forward and to overcome blocks in progress
Further guidance on the skills that will be looked for during assessment are provided in the
portfolio guidance document.
C8 Maintain progress towards resolving issues
This includes:
managing strong emotions and conflict sufficiently to allow the mediation process to move
forward
ensuring that all mediated outcomes follow a clear rationale, are reality-tested, and are
approved by both participants
ensuring congruence between without prejudice mediation summaries and open financial
statements
ensuring that only appropriately open facts are included in open financial statements
drafting financial settlements that are capable of legal implementation and accord with current
legislation
details and outcomes of each session, including any proposed actions (for participants and
the mediator) and matters to be taken forward to the next session.
Appendix 3
The level required at the point of assessment
The assessors will be looking for a level of performance that is at least competent as indicated
below, but also shows development towards the proficient level. The table can also be used as an
aid to tracking development, for instance in PPC discussions.
Knowledge
Standard of work
Autonomy
Coping with
complexity
Perception of
context
Novice
Minimal, or 'textbook'
knowledge without
connecting it to
practice
Unlikely to be
satisfactory unless
closely supervised
Needs close
supervision or
instruction
Little or no
conception of dealing
with complexity
Advanced
Beginner
Working knowledge
of key aspects of
practice
Straightforward tasks
likely to be completed
to an acceptable
standard
Competent
Good working
Fit for purpose,
knowledge of practice knowing when to
and key principles
seek support for more
complex issues
Proficient
Depth of
understanding of
practice and
underlying principles
Fully acceptable
standard achieved
routinely
Expert
Authoritative
knowledge of
underlying principles
and deep tacit
understanding of
practice
Excellence achieved
with relative ease
Able to take
responsibility for
going beyond existing
standards and
creating own
interpretations
Holistic grasp of
complex situations,
moves between
intuitive and
analytical approaches
with ease
Adapted from the Dreyfus model of skill acquisition: see Dreyfus, H & Dreyfus, S (1986) Mind over Machine.
New York: Free Press.
Appendix 4
Transitional and non-standard arrangements for award of FMCA
The following measures are available for mediators who have relevant training, recognition or
experience when the new framework comes into force, or have trained or gained recognition outside
the UK. Transitional arrangements will normally cease by 31st December 2016 at the latest.
1 Family mediators currently approved to undertake legal-aided work or who have FMA or
Resolution accreditation
Mediators who are currently approved to undertake legal-aided work (whether through the APC
scheme, the LSC/UK College scheme, or the Law Society scheme), or hold accreditation under the
Family Mediators Association or Resolution schemes, will transfer directly to FMCA provided that
they are in current full membership of an FMC member organisation as a practising family mediator
including meeting the requirements for CPD and for PPC support. Mediators within this category who
are not currently approved to undertake legal-aided work may be restricted from undertaking legalaided work without a further assessment.
2 Family mediators who have trained pre-changeover but do not come into category 1 above
(including those who are MIAMs-approved)
This measure applies to mediators who have, pre-changeover, passed a family mediation initial
training course that was provided by an FMC member organisation or that has been approved for
family mediation by the College of Mediators. This training will be treated as if it had been approved
by the FMC, so mediators can register to start working towards FMCA in accordance with the normal
regulations.
Where mediators within this category already have some PPC-supported experience in working
towards APC or Law Society accreditation, or have approval to conduct MIAMs, this can be used as
part of the required post-training development.
additional requirements in the new scheme for the assessed portfolio, and should discuss what they
need to do with their PPC.
Mediators who fall within this measure have three years from the date of their initial training, or for
MIAMs-approved mediators until 31st December 2015 if longer, to achieve FMCA. An extension of
up to a further two years may be granted if there is good reason and the extension is supported by the
mediators PPC. Approval to undertake MIAMs expires on 31st December 2015 for mediators who do
not achieve FMCA.
The names of the training provider and course tutors, and if relevant the validating body.
Full details of the course content and duration, the teaching and practice methods used, and how
it was assessed. If this is not in an official course document, it needs to be endorsed by the
course tutor.
The FMSB can decide to accept the course as covering the initial training requirements; accept the
course but require evidence of additional learning to make up any deficiencies (which could be
provided by a suitable conversion course, short course or other forms of learning, depending on what
gaps need to be covered); or reject the course as providing insufficient coverage of family mediation
as represented by the FMC Professional Standards and Code of Practice. Courses will normally be
rejected if the FMSB considers that the gap between the course content and the FMCs requirements
is too large to be made up by easily-available training or other sources of learning.
Mediators whose training has been approved as acceptable, with or without additional learning, will
need to register as working towards FMCA, and complete within three years of their training. Where
additional learning has been asked for, this needs to be demonstrated and approved by the
mediators PPC before the portfolio can be submitted for assessment.
Non-validated courses from within England and Wales will only be considered if they were taken
before the end of 2014, and only for mediators being assessed for accreditation before 31st
December 2016. An extension of up to a further two years to gain accreditation may be granted if
there is good reason and the extension is supported by the mediators PPC.
work exclusively with a community whose native language is not English or Welsh, this latter needs to
be at a native or near-native level (CEFR level C2).
If more than occasional applications are received from the same course or qualification that is
provided outside England and Wales and is conducted in English or Welsh, the FMSB should
encourage the provider to gain FMC approval for it through the normal processes.
Applicants should
normally demonstrate the above practising requirements, including the stipulated level of PPC
support, along with adequate initial training as indicated in measures 2, 3 or 4. Initial training does not
need to be recent provided that the applicant can provide evidence of having kept up-to-date.
Mediators admitted under this measure need to meet the standard portfolio requirements, except for
the additional ten hours of PPC support. Applicants should however ensure that they have sufficient
PPC support to complete the tasks required for the portfolio.
This measure will cease after 31st December 2016.
6 Family mediators who have accreditation from outside of England and Wales
The basic treatment of family mediators who have professional accreditation, qualified status or state
registration from outside England and Wales is the same as for measure 5, except that there will be
no cut-off date.
The FMSB will apply the same considerations about language and the English and Welsh context as
in measure 4, and will also record decisions with a view to maintaining consistency.
The FMSB will work towards establishing mutual recognition processes for schemes outside of
England and Wales, with a conversion requirement specific to each scheme.
Introduction
This document sets out the requirements and process for FMC approval of initial training courses for
family mediators. Section 1 covers the minimum requirements for courses, and Section 2 the process
for approval. These requirements come into force on 1st January 2015.
demonstrate how their courses meet these requirements, as detailed under each section below.
1.1 The provider
There is no restriction on the type of organisation that can provide family mediation training, provided
that the minimum requirements set out in this document are met.
Applications can be accepted from providers in England and Wales, as well as from outside of
England and Wales for courses run in English or Welsh. Non-England and Wales providers who
intend or expect that some of their course participants will want to practise in England or Wales are
encouraged to gain FMC approval for their courses.
Providers will need to provide details of their legal status, contact details and where applicable
registered office; whether the organisation is part of a parent organisation or group, or if it is applying
as a consortium, details of the members of the consortium; the person responsible for the application
to whom correspondence is to be addressed; and the person with authority to authorise the
application.
Providers will need to demonstrate that they have adequate resources and financial capacity to meet
the above requirements, including ongoing support for participants as described in section 1.6.
Providers will need to include brief details of previous family mediation courses that they have run and
(where applicable) which organisation these have been approved by. Providers without previous
experience of running family mediation courses should include details of similar courses that they
have run or are currently running.
1.2 Entry to courses
Entrants to courses should demonstrate:
The ability to work at graduate level, either through possession of a degree or equivalent-level
professional qualification, or experience of work in a role that requires an equivalent level of
thinking and application.
The ability to understand and use an adequate level of written and spoken English (or Welsh for
courses in the Welsh language). Providers should note that unless the mediator is proposing to
work exclusively with a community whose native language is not English or Welsh, this will need
to be at a native or near-native level at the point of accreditation (CEFR level C2).
The ability to work with conflicts and manage interpersonal relationships at a professional level,
gained either through typically two or three years experience as a professional dealing with
families, or a similar amount of time as a mediator or non-adversarial dispute resolution
practitioner in another field.
Providers will need to show how they are applying, or intend to apply, these principles to course
admission. In particular they should demonstrate how they will operate fair and equitable access,
while ensuring that potential participants are adequately prepared for the course.
Providers must provide accurate information to prospective course participants.
In addition to
information about the course, this includes accurate information about the process post-training to
gain accreditation (FMCA) via the FMC or Law Society, including the implications in terms of the level
and cost of Professional Practice Consultant support that will be required.
1.3 Level of course
Family mediation courses should reflect as a minimum the requirements for level 5 as described in
the level descriptors of the Qualifications and Credit Framework, Framework for Higher Education
Qualifications or Credit and Qualifications Framework for Wales. Providers may choose to pitch their
courses at a higher level provided that the other requirements stated here are adhered to. Courses
may optionally be validated or credit-rated by a university or recognised awarding body, but this is not
currently a requirement for FMC approval.
Providers will need to include a summary of learning objectives and course content that accords with
the minimum level requirement and supports participants to demonstrate learning outcomes in
accordance with 1.4 below.
1.4 Course content
Providers should refer to the FMC Professional Competence Standards and the Code of Practice in
developing their course content and assessment criteria. The Competence Standards are geared to
a level of practice some time after training, but courses should cover the principles, knowledge,
techniques and skills stated or implied in the Standards, including applying them in a simulated
environment.
Providers should note that the Standards include pre-mediation information and
assessment, and initial training must now cover these areas as separate MIAMs training will cease
after the end of 2014.
Courses must cover knowledge of children and property/finance aspects, and ensure that participants
can carry out a simulated all-issues mediation and produce outcome statements relating to both
children and property/finance.
Courses must provide an adequate opportunity for skills development though role-play and other
relevant techniques. Each participant must play the role of the mediator several times over the
duration of the course and be provided with adequate feedback, such that s/he has a fair and
adequate opportunity to demonstrate the relevant learning outcomes.
1.5 Duration and teaching methods
The minimum requirements for initial training courses are:
At least 60 hours of contact time, excluding time spent on reading or other private study,
completion of assigments and preparation for assessment. This must be spread over a minimum
of eight days with sufficient intervening periods to enable reflection, private study and preparation
for assessment. Up to half the contact time may be substituted by structured on-line or distance
learning supported by adequate one-to-one or small group tutor support. A variety of teaching
methods must be used so that participants have an opportunity to learn the required principles
and theory, reflect on and discuss principles and approaches, apply theory to practice, and
develop the relevant skills.
At least 30 hours of the above time to be spent on skills development, generally through role-play
exercises as described in section A4 above.
Courses must run with sufficient participants to support adequate skills development. Normally
this will mean a minimum of six participants on any course.
Providers will need to include a summary of the course programme or programmes that are expected
to be used, demonstrating how they meet the above requirements. Providers should note that there
is a large amount of content to cover, including development and assessment of skills. A 60-hour
course will need to be carefully designed, with good use of the intervening periods for remote study,
to ensure that participants have a fair opportunity to reach the required standards.
1.6 Assessment
All the key areas of the FMC Professional Competence Standards must be assessed at a level
appropriate for a classroom/simulated environment, with all needing to be demonstrated to a
satisfactory standard for the course to be passed.
Formal assessment must either be carried out or moderated by a person who has not been involved
in training the participant who is being assessed.
This support can include advice to gain additional training or experience if this is
necessary. Providers must act in participants interests by providing fair and unbiased information
and advice that is geared to giving participants the best chance to pass the assessment. Providers
obligations under this requirement can cease twelve months after the end of the course.
Providers will need to include a summary of the assessment methods and tasks that are proposed,
including how assessments will be moderated.
1.7 Staffing
At least 80% of the course must be taught by core trainers who (a) are FMC or Law Society
accredited family mediators and (b) who either have a teaching or training qualification at a minimum
of England and Wales level 4, or have previously acted as a core trainer on at least two comparable
mediation courses. The same requirements apply to assessors.
All courses must (a) involve a minimum of two trainers and (b) have a maximum ratio of six
participants per trainer for all practical exercises. Staffing must take account of the requirement for
independent assessment or moderation described in section 1.6.
Providers will need to include details of each of the core trainers and the assessors that they propose
to use, demonstrating how the above criteria are met.
1.8 Certification
Participants who have passed all the course assessments will be issued with a certificate stating their
achievement.
Any other records, for instance confirming attendance or providing credit for partial achievement, will
be clearly distinguished from full certificates and include a statement to the effect that they do not
represent completion of initial training as required by the Family Mediation Council.
1.9 Post-training review with a Professional Practice Consultant
Before proceeding towards accreditation with the Family Mediation Council, it is a requirement that all
mediators must have a post-training review with an FMC-approved Professional Practice Consultant
(PPC). Providers may optionally wish to (a) aid participants who have not already done so to find a
PPC, and (b) to include the cost of this review in the course fee. Providers must be clear in their
literature whether this service is included or whether participants need to arrange their own PPC
support.
Providers should ensure that participants are aware of the requirement to register with the FMC,
normally through one of the FMC member organisations, before acting as a sole or lead mediator or
representing themselves to the public as a family mediator.
2. Course approval
2.1 Requirement for course approval
Approval from the Family Mediation Council is needed for courses to be accepted as providing the
initial training needed for family mediators to start working towards FMC accreditation.
Approval will be normally for a period of three years, after which reapproval will be needed as
described in section 2.4 below.
submitted via the initial approval process as described below. Exceptionally, approval can be for a
shorter period after which stated conditions must be met. Reapproval will also be required if the legal
entity of the provider changes.
2.2 Responsibilities and conflicts of interest
Course approval is the responsibility of the FMC Family Mediation Standards Board (FMSB), either
directly or via delegated authority to a course approval panel or executive. No person involved in
considering an application for course approval or reapproval may be, or have been within the last
three years, a trustee, board member, employee, trainer or assessor of the organisation submitting
the application.
2.3 Initial approval
The intending course provider must submit an application that describes how the minimum
requirements detailed in section 1 will be met.
In the case of non-approval, the reviewers must make clear which requirements have not been met
and make recommendations for bringing the application to a satisfactory standard. Reasons for nonapproval must be endorsed by the FMSB and communicated to the applicant.
The FMSB will communicate its decision to the applicant within ten working days of receiving the
report from the reviewers. Where further information is requested, the applicant may provide this
directly to the reviewers.
Applicants who have not been successful in their first application will normally be encouraged to
address the points that resulted in rejection and resubmit their application.
The FMSB will consider appeals on the basis that the reasons given for rejection were not in
accordance with the requirements stated in this document. On appeal, the application will be treated
as a new application and sent to two further reviewers under the procedure described above. The
FMSBs decision following appeal will be final.
Following approval, the applicant undertakes to provide access to all course and assessment
materials (including web-based materials and platforms), training and assessment sessions,
assessed work, trainers and participants should the FMSB wish to conduct an inspection. The FMSB
will give at least ten working days notice before making any inspection.
The FMSB may set fees for course approval, resubmissions of unsuccessful applications, and
appeals. The appeals fee will be refunded if the appeal is successful.
2.4 Re-approval
Reapplications must be made in sufficient time to enable any planned courses to run before approval
expires. Reapplications cannot be made more than 42 months after the date of the original approval.
Reapplications should focus on any changes that have been made or are proposed since the original
application, including changes to staffing. They should also be accompanied by:
A concise report on the provision that has taken place since the last approval, including any
changes that have been made as a result of learning by the course team
The procedure for handling reapplications will be the same as that for initial applications.
Re-approval will normally be for a period of three years.
Where re-approval is required within any three-year approval period because of a change in legal
entity, the applicant should initially provide details of the new organisation together with a summary of
the material changes that this entails. The FMSB will decide whether a full reapplication is required at
this stage.
Introduction
This document sets out the basic requirements for assessors for FMC Accreditation (FMCA).
Equivalent requirements will apply to Law Society assessors for family mediation accreditation, with
different arrangements for oversight. The FMC and the Law Society will work towards a common pool
of assessors with, wherever sensible and feasible, common training and updating.
have been practising continuously as a family mediator for at least three years
Assessors must be provided with adequate training to enable them to carry out their role to an
acceptable standard. Initial training may take the form of a one-day course, one-to-one mentoring, or
distance learning followed by discussion. Training must cover:
The requirements of the FMCA scheme and their implications for assessment.
Interpreting the FMC professional competence standards and assessing against them to the
required level.
Following initial training, the assessor will be provided with one-to-one support by the Chief Assessor
(or another experienced assessor nominated by him or her) to help in assessing his or her first
portfolio(s). The Chief Assessor will sign off the new assessor when s/he is ready to assess unaided.
Trainee assessors who are not signed off after co-assessing three portfolios and believe that they are
ready to assess unaided may ask for a second opinion for their next portfolio, which will be
considered by the FMSB along with that of the Chief Assessor. Beyond this, continued support
towards signing off as an assessor will be at the FMSBs discretion.
Assessors must keep up-to-date with any changes in the FMCA scheme and in recommended
assessment practice. Updates may be provided in the form of meetings, short courses or briefing
sessions, electronic or paper-based materials, or online conferences. The FMSB will provide, and
assessors are responsible for reading and if necessary gaining clarification on, details of changes to
the scheme.
In addition to updating requirements specifically for assessors, all assessors must remain accredited
(FMCA) including meeting the minimum requirements for practice as a family mediator and for contact
with their own PPC.
Oversight of assessors
The FMSB is responsible for the competence and conduct of assessors, via the FMCA Chief
Assessor.
The main means of oversight is via examining assessed portfolios along with the assessment
decisions. The Chief Assessor (or his or her nominee) will carry out a brief second check of all
portfolios, and examine any that appear to be borderline in greater depth. Borderline portfolios, and
those where there appear to have been problems with the assessment, will be discussed with the first
assessor. Assessors may also ask the Chief Assessor to check interpretations or specific points. The
FMSB will also examine a sample of portfolios as a check that the overall process is operating
consistently and to the required standard. This does not constitute an additional assessment and will
not delay assessment decisions being communicated to mediators.
Assessors who appear to be having difficulties with assessment will be offered additional support.
The FMSB reserves the right not to use the services of any assessor who is consistently requires a
high level of monitoring, who repeatedly fails to follow the FMCA scheme requirements, or who
causes unnecessary delays in the assessment process.
Introduction
This document sets out the basic requirements for Professional Practice Consultancy and the training,
registration and oversight of Professional Practice Consultants when the revised system of
accreditation comes into operation in 2015. The training of PPCs is the responsibility of individual
FMC member organisations (MOs), while registration and oversight is the responsibility of the FMC
Family Mediation Standards Board (FMSB).
required to have a specified minimum level of initial and ongoing PPC support as a condition of
registration and accreditation.
The PPCs role includes acting as a mentor and sounding-board for the mediator, and providing a
second professional opinion when requested by the mediator, the FMC or the mediators MO, for
instance in response to a complaint or difference of opinion. It also involves maintaining oversight of
the mediators work insofar as is possible within the stipulated minimum requirement for PPC contact.
While it is not a policing role, the PPC must draw the mediators attention to any matters that may
lead to contravention of the FMC Code of Practice, and, should the mediator continue to contravene
the Code in spite of the PPCs advice and warnings, to reporting such contraventions to the
mediators MO for consideration under its complaints and disciplinary procedures. PPCs are also
encouraged to discuss with their mediators (and, if necessary to arrive at a decision on acceptability,
raise with the MO concerned) any issues which, while they do not directly contravene the Code, could
be considered borderline in terms of good practice.
PPCs must act confidentially, and in line with data protection requirements, in relation to their
mediators and to any information they are privy to about mediation clients, while making clear that
there are limits to confidentiality where there is risk of harm, money laundering, serious breach of the
Code of Practice, or where directed to reveal information by a Court.
The PPC cannot be held responsible for any failings in the mediators work unless they result from a
clearly substantiated neglect of these duties. MOs should note that PPCs cannot be considered
sufficiently independent to carry out a formal investigation of a complaint against a mediator whom
they support and supervise, though as stated above they may be asked to provide a second opinion
to aid informal resolution.
Where a mediator voluntarily changes his or her PPC, the new PPC must contact the outgoing one to
check the reason for end of the previous PPC relationship and acquaint him/herself with any practice
issues or concerns on the part of the previous PPC.
PPCs also have additional duties in relation to mediators who are registered as working towards FMC
accreditation (FMCA), including supporting portfolio development, observing mediation, approving
documentation, and signing Court forms.
document.
PPCs must act in accordance with the FMC PPC Code of Practice and the Guidelines for PPCs.
have been practising continuously as a family mediator for at least three years
Mediators who successfully complete the required PPC training (see below) must apply to the FMC to
be placed on the register of PPCs. Once registered, PPCs are recognised by all MOs and eligible to
work with members of any MO.
PPCs are engaged by business entities (including sole practitioners) to work with individual mediators
or groups of mediators. A PPC must not work as such with a mediator, firm or service when a conflict
exists that may inhibit the PPC from providing impartial advice and support, or from acting
appropriately in the case of mediators deviating from the FMC Code of Practice. This includes but is
not limited to situations where the mediator has a close personal relationship with the PPC, or is in
another economic relationship with the firm or service that would allow it to place undue pressure on
the PPC.
PPCs must re-register every three years to practise as PPCs, normally at the point when they renew
their FMC accreditation.
The role and responsibilities of the PPC, both in relation to general practice and in relation to
Implications of the FMC Code of Practice, professional competence standards, and complaints
Understanding and applying the FMC PPC Code of Practice and guidance
Balancing supporting aspects of the role with the need to maintain professional standards and
public protection
Potential conflicts within the PPC role and matters that the PPC cannot take responsibility for
The course must include an assessment of each participants understanding of the topics covered,
which must be passed before the participant can be registered as a PPC.
assessment is open to providers;
verbally, the provider will need to keep a record of the discussion signed by the trainer and the
participant; if operated remotely, the provider must ensure that the prospective PPCs identity is
authenticated, for instance by having the test witnessed by his or her PPC or administered by a
responsible and impartial person.
The FMC, in conjunction with MOs, will also provide or facilitate the organisation of updating events
and resources for PPCs; these may include national, regional and online events, as well as electronic
and paper-based resources and helplines. The FMC is responsible for ensuring that the PPCs on its
register are kept up-to-date with changes in relevant aspects of the FMCs self-regulatory framework
and recommended good practice for PPCs. PPCs are responsible for ensuring that they keep up-todate with the information provided the FMC and by MOs in relation to these matters. They must
normally attend at least one updating event specifically for PPCs each year, which may be a national,
regional or synchronous online event, and undertake a minimum of five hours updating annually that
is directly relevant to their role as a PPC (including the event).
In addition to these updating requirements specifically for PPCs, all PPCs must remain accredited
(FMCA) including meeting the minimum requirements for practice as a family mediator and for contact
with their own PPC. PPCs must also act as a PPC for a minimum of four hours per year (i.e. the
equivalent of supporting one mediator), which may be averaged over three years.
Monitoring that PPCs are meeting the ongoing requirements to practise as a PPC.
Deselecting PPCs found to be in neglect of their responsibilities, via a fair and consistent process
with possibility of appeal.
PPCs must re-register every three years, normally at the same time that they renew their FMC
accreditation. In addition to the ongoing requirements for FMCA, they will need to demonstrate the
following:
Compliance with the minimum updating requirements for PPCs stated above (PPC development
activities should be added to the form for continuing development, and commented on in the
same way).
Evidence of at least twelve hours of PPC activity, equivalent to acting as a PPC to one mediator,
over the three years. The MO may ask to see summary records of this activity.
Confirmation from their own PPC that s/he still supports their continuing in the PPC role.
Where PPCs fail to meet these requirements, they will normally need to attend a refresher course (or
full PPC course if a refresher is unavailable) provided by a MO.
Each MO must maintain a register that ensures that each member who practises as a family mediator
(whether or not accredited or registered as working towards accreditation) has a current PPC, and
provide this to the FMC. Where a members PPC changes, the MO should ensure that the new PPC
contacts the previous PPC to check the reason for end of the previous PPC relationship and acquaint
him /herself with any practice issues or concerns on the part of the previous PPC.
Initial responsibility for both complaints and disciplinary processes rests with the member
organisations (MOs) of the Family Mediation Council (FMC).
common standards, acts as an adjudicator where MOs processes and interpretations are challenged,
and is also ultimately responsible for decisions about accreditation (FMCA).
requirements below, and will be provided to all members and to all persons who have notified the MO
of their intent to make a complaint.
The MO will include provisions for investigating, insofar as is practicable and subject to reasonable
time limitations, complaints against former members where the complaint arose during their period of
membership, and concluding the investigation of any complaint where the member resigns during the
investigation. These provisions are necessary to prevent mediators from avoiding investigation and
possible disciplinary action while continuing or returning to practise with another MO. Where the
investigation upholds the complaint and considers that it is a disciplinary matter, the MO must refer
the case to its disciplinary panel as if the mediator was still in membership.
The MO is responsible for requiring its members to inform their clients of their right to escalate a
complaint to a named MO of which the mediator is a member if they are unable to resolve it with the
mediator or their firm or service provider. This information should be provided at least verbally and
preferably in writing at the initial meeting, and in writing before the agreement to mediate is signed.
The agreement to mediate must include a clause where both clients consent to release of the
mediation file to the MO (and if necessary the FMC) should either client wish to escalate a complaint.
The member must also ensure that clients are aware that the MO complaints procedure does not
prejudice the right to seek civil remedy.
The MO will normally only investigate a complaint relating to the standard of service provided by the
member if the complainant has already exhausted the members own complaints procedures
(including those of any firm of service provider for or via whom the mediator provided the service that
the complaint concerns).
The MO may require that escalated complaints are normally submitted in writing, but must offer
appropriate support to complainants who are unable to express themselves sufficiently clearly in
writing. The MO must obtain consent from the complainant that all matters relating to the complaint
can be shared with the member and the members PPC. Where the complaint is from a mediation
client, the MO must obtain consent from the complainant to examine the clients file (this consent
should normally already be available if the mediator has followed the requirement above that consent
is incorporated in the agreement to mediate).
Where appropriate, and before the complaint reaches the stage of formal investigation, the MO may
ask the members PPC to discuss the complaint with the member and produce an opinion that is
shared with the member and the MO. The MO must however be aware that there is an established
working relationship between the PPC and the member, and avoid placing the former in a situation
where there is a conflict of interest. To be clear, a members PPC cannot be considered sufficiently
independent to make a formal investigation of the complaint.
The MO will not make a charge for investigating complaints.
The MO panel investigating the complaint must be constituted to avoid any conflict of interest. Should
any panel member become aware of a conflict of interest, s/he will immediately step down from the
investigation.
The MO must investigate the complaint without presupposition or bias, and enable both the
complainant and the member to present their cases fairly. The member must have access to the
allegations made by the complainant, must be allowed to share them with his or her PPC, and must
be allowed to make a full reply.
In arriving at its decision the MO must apply the FMC Code of Practice and where relevant the FMC
Professional Competence Standards.
If the complaint is upheld, the MO may require the member to make appropriate redress, including if
needed the return or remission of any fees. The complaints panel may also recommend that the
member is referred for disciplinary action.
The MO must have an impartial process, independent of the initial investigation, for considering
appeals against complaints, both by complainants and by members. The appeals process should be
accessible, but should state the grounds on which appeals will be accepted for consideration.
The MO must inform the parties to an appeal that, having exhausted the MOs internal procedures,
they may take a complaint to the FMC for further consideration. The FMC will limit its consideration to
whether the MO has complied with the requirements set out in this document and has followed its
own documented complaints procedure.
The deliberations of the MO in respect of the complaints and appeals processes must remain
confidential, except that (a) where disciplinary action is to be taken they must be provided to the
disciplinary panel, and (b) where the decision is referred to the FMC they must be provided to the
FMC to aid with further consideration.
(b) Disciplinary processes
Each FMC member organisation (MO) is responsible for disciplinary processes in respect of its
members.
Disciplinary processes commence when an investigation has taken place under the
complaints procedure in response to a complaint or a claimed breach of the Code of Practice, and the
decision is made to refer the member for disciplinary action. Disciplinary processes must also be
pursued in the case of former members referred from the complaints procedure, so that the outcome
can be notified to the FMC and if necessary the mediators accreditation revoked.
The MO will convene a disciplinary panel when a referral is made for disciplinary action.
The
disciplinary panel must be constituted to avoid any conflict of interest. Should any panel member
become aware of a conflict of interest, s/he will immediately step down from the decision-making
process.
The role of the disciplinary panel is to consider what action is necessary to protect the public, to
restore confidence in the profession, and where appropriate to ensure that the mediator is competent
to continue practising. The panel will not re-investigate the matters giving rise to the complaint or
breach that resulted in referral.
In reaching the penalty or remedial action to be applied, the panel must consider the consequences or
potential consequences, level of intent, level of negligence and level of competence displayed by the
member. In particular:
If allowing the member to continue to practise would constitute a significant risk to clients,
members of the public, or other professionals or co-workers, the minimum penalty must be
suspension. If this is due to lack of competence, additional training or directly supervised practice
may be required as appropriate before the member can be reinstated.
If due to deliberate
If in the panels judgement there is no risk or the risk is minimal, the member may be allowed to
continue in membership subject to either or both of a formal warning or, in cases where his or her
level of competence is a contributing factor, additional training or supervised practice. A second
formal warning for the same or a closely related reason, or three formal warnings overall, can
constitute sufficient grounds for termination of membership.
Where the handling of the complaint giving rise to the disciplinary action is subject to an appeal, any
disciplinary action should be held in abeyance until the outcome of the challenge is known. The
exception is where the penalty is suspension or termination of membership, when suspension should
apply until the appeal (and any subsequent referral to the FMC) has been decided.
The MO must have an impartial process, independent of the initial investigation, for considering
appeals against disciplinary measures, both by complainants and by members. The appeals process
should be accessible, but should state the grounds on which appeals will be accepted for
consideration.
The MO must inform the parties to an appeal that, having exhausted the MOs internal procedures,
they may take a complaint to the FMC for further consideration. The FMC will limit its consideration to
whether the MO has complied with the requirements set out in this document and has followed its
own documented disciplinary procedure, and whether any sanction that has been applied, or any
decision not to apply a sanction, is fair and proportionate.
All disciplinary measures taken against members and former members must be reported to the FMC.
(c) Co-operation and common standards
Each MO must co-operate with the FMC and with the other FMC MOs in upholding professional
standards, investigating complaints and ensuring that members are fit to practise. This includes
sharing relevant information where it is legal to do so, following or taking account of decisions made
by other MOs, and following FMC recommendations in relation to complaints and disciplinary
processes.
The MOs complaints or disciplinary procedure did not conform with the requirements set out in
this document.
The MOs decision was contrary to the FMC Code of Practice and where relevant the FMC
Professional Competence Standards.
The MO failed to take account of all the relevant evidence that was provided.
In disciplinary cases, the MOs decision was not in proportion to the nature of the misconduct.
The FMSB will consider whether a penalty is too harsh or lenient in relation to the guidelines
given in section 1(b), but it will not normally consider specifics relating to requirements for further
training or supervision.
Where the FMSB accepts that the matter referred for adjudication is within its area of competence, it
will convene an adjudication panel to examine the matter.
constituted to avoid any conflict of interest. Should any panel member become aware of a conflict of
interest, s/he will immediately step down from the investigation.
The adjudication panel will normally require to see all the evidence and records relating to the original
investigation and decision-making process. It may not hear or examine any new evidence or carry
out a reinvestigation of a complaint or matter giving rise to disciplinary action, although it may ask for
clarification from the complainant, the member, or the MO.
If the adjudication panel finds that the MOs processes or interpretations were deficient, it will
recommend that the MO changes its decision to the extent that would have applied had the correct
procedures been followed. It may also recommend changes to the MOs complaints or disciplinary
procedures to make them consistent with the requirements set out in section 1 above.
If the adjudication panel finds that a disciplinary penalty is unduly harsh or lenient in relation to the
guidelines provided in section 1(b) it will recommend that the MO changes its decision accordingly.
The panel may also recommend to the FMSB that a mediator who holds or is registered for FMCA
and who is guilty of serious or recurring misconduct, but whose membership has not been revoked by
his or her MO, has his or her accreditation removed.
(b) Removal of accreditation
Where an MO revokes or suspends a mediators membership as a result of a disciplinary procedure,
the FMSB will normally withdraw or suspend accreditation in accordance with the MOs decision
regardless of whether or not the mediator is a member of another MO.
If, in exceptional
circumstances, the panel decides not to withdraw accreditation from a mediator whose membership
has been terminated, this will not affect the MOs decision and will only enable the mediator to remain
accredited if s/he is also a member of another MO. The panel may decide at its discretion to require a
mediator whose membership has been suspended to undergo reassessment before s/he can be
readmitted to FMCA status.
The FMSB will also normally remove accreditation from any mediator whose former MO would have
revoked membership for disciplinary reasons save that the mediator had already resigned from the
MO.
(c) Appeals to the FMC against withdrawal of accreditation or refusal to reaccredit
Mediators who are members of one or more MOs and whose accreditation has been withdrawn, who
are refused reaccreditation after making a valid and complete reaccreditation application, or who wish
to restart working towards accreditation after being debarred from doing so, may appeal to the FMC,
clearly stating the grounds for the appeal. Mediators are strongly encouraged to discuss potential
appeals with their PPC, and will need to explain the reason if the PPC is not supporting the appeal.
Mediators and PPCs are encouraged to each make a short written statement in support of the appeal
successful.
When an appeal is approved to go forward, the FMC FMSB will convene an appeals panel that has
not been involved in the decision to withdraw or refuse accreditation. The panel will examine the
decision-making process leading to the withdrawal or refusal of accreditation. The decision on appeal
will be final.
Mediators who have had membership of a MO terminated should note that a successful appeal
against withdrawal of accreditation will not require that MO to reinstate their membership.
(d) Sharing details of disciplinary penalties with MOs
In order to prevent mediators from avoiding the consequences of cumulative disciplinary penalties, or
from avoiding any requirements for additional training or supervision, the FMC will keep a time-limited
register of disciplinary penalties and remedial requirements that have been applied, and at its
discretion share details of the penalties and requirements applying to any individual mediator with any
or all of its MOs.
Appendix 2
Safeguarding Children and Young People - Duties and responsibilities
Everyone has a responsibility for safeguarding children and young people. Family mediators also have a duty to
safeguard vulnerable adults.
Confidentiality principles for family mediation include the ability to breach confidentiality where there is an
allegation or disclosure of harm against another person especially a child. If the mediator believes that a child
is at risk of, or is suffering, significant harm then they must immediately report this to the appropriate authority
usually the local authority childrens services duty team.
In England the law states that people who work with children have to keep them safe. This safeguarding
legislation is set out in the Children Acts of 1989 and 2004. It also features in the United Nations Convention
on the Rights of the Child (to which the UK is a signatory) and sets out the rights of children to be free from
abuse. The government also provides statutory guidance in the document Working Together to Safeguard
Children, first published in 2010 but now replaced by a 2013 edition.
The Working Together document sets out how all those involved in working with or providing services to
children and families should act to protect children from harm and to promote their welfare. The Department
for Education has issued new statutory guidance which incorporates the recommendations of the Munro
Review and which came into effect on 15 April 2013. It is critical that all mediators are aware of the content of
this document and the statutory guidelines that apply and that may affect their practice as mediators working
with families generally and particularly where they may consult directly with a child or children as part of a
mediation process.
In summary, the guidance covers:
the legislative requirements and expectations on individual services to safeguard and promote the
welfare of children; and
a clear framework for local safeguarding childrens boards (LSCBs) to monitor the effectiveness of local
services.
As noted, the 2013 edition replaces the 2010 edition. It also supercedes the framework for the assessment of
children in need and their families (2000) and the 2007 statutory guidance for making arrangements to
safeguard and promote the welfare of children under s11 of the Children Act 2004.
The guidance is issued under:
Section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social
services functions to act under the general guidance of the Secretary of State
Section 11(4) of the Children Act 2004, which requires each person or body to which the s.11 duty applies
to have regard to any guidance given to them by the Secretary of State; and
Section 16 of the Children Act 2004, which states that local authorities and each of the statutory
partners must, in exercising their functions relating to Local Safeguarding Children Boards (LSCBs), have
regard to any guidance given to them by the Secretary of State.
And note:
The guidance is comprehensive, dealing with early help to serious case reviews and is therefore a complete
framework for all those involved in the provision of services to children and families.
Organisational responsibilities
Chapter 2 sets out organisational responsibilities including those placed on voluntary and private sector
providers and makes clear that such providers should have the arrangements described in the guidance in place
in the same way as organisations in the public sector, and need to work effectively with the LSCB (p57).
It is therefore important that mediators are aware of those arrangements and ensure that they are
appropriately translated into their own practice and/or service. In some cases, these arrangements will need to
be met by utilising, for example, training opportunities provided by mediator member organisations or by the
local authority/LSCB and by considering how policies might be written to reflect the requirements of the
guidance in relation to sharing information - whether with other professionals, on making a report or in relation
to other local arrangements set out by the LSCB. Mediators will need to check how their own organisation or
practices functions and structure relates to arrangements required and ensure that the salient arrangements
are met. In summary, all mediators should ensure that:
paid and volunteer staff are aware of their responsibilities for safeguarding and promoting the welfare of
children;
they know how they should respond to child protection concerns; and
they know how referrals should be made to local authority childrens social care, or the police if
necessary.
assessment as to whether there is reasonable cause to suspect that the child is suffering, or likely to
suffer, significant harm and whether enquiries must be made and the child assessed under s.47 of the
Children Act 1989;
consideration of whether there are any services required by the child and family; and
further specialist assessments in order to help the local authority to decide what future action to take.
Mediators should be aware of this enhanced range of duties and responsibilities placed on the local authority in
order to properly inform parents with whom they work of the broader nature of help and support for children
and families that may be available to them as a result of a referral for assessment.
In general, the responsibility placed on mediators remains as previously: to be alert to concerns in relation to
harm to a child or a vulnerable adult, and any allegations made in respect of such harm, in particular where an
allegation or concern provides reasonable cause to suspect that the child or children is suffering, or likely to
suffer, significant harm and/or, in the wording of the new guidance, the child requires immediate protection
and urgent action is required.
is informed that a child who lives, or is found, in their area is the subject of an emergency protection
order; or is in police protection; or
has reasonable cause to suspect that a child who lives or is found in their area is suffering or likely to
suffer significant harm.
The authority make, or cause to make, such enquiries as it considers necessary to enable it to decide whether it
should take any action to safeguard or promote the childs welfare (s47(1)).
Resolution
Guide
to
Good
Practice:
Mediation
Important pointers for mediators and those consulting directly with children and
young people
Mediators must work within statutory guidelines and must take care to ensure that they are properly and
currently informed of arrangements in their local area.
Mediators must ensure that the arrangements required and as set out in chapter 2 of Working Together
(Organisational responsibilities) are appropriately established and effectively monitored in their own
practice or service.
Mediators must ensure that they are aware of and know how they should make a referral to the local
authority (or to the police) when it is appropriate or essential that they do so.
Mediators must ensure that parents, children and young people are made aware of the mediators duties
and responsibilities in relation to safeguarding and the exemption to confidentiality that applies in
respect of safeguarding/child protection concerns. Where this concerns explanations to children and
young people, mediators should ensure that this is provided in age-appropriate terms and that where a
child or young person discloses or tells a mediator of any aspect of harm to them, the mediator will need
to ensure that someone who has responsibility for keeping children safe is informed.
Wherever possible, mediators should have a nominated, named contact within the local authority with
whom they should liaise in order to keep currency of information in regard to reporting procedures. In
some areas it may be possible to arrange an informal consultation procedure with the local authority
childrens services team, which would allow mediators to consult with the local authority to assist it in
deciding whether to make a formal referral. Note that the NSPCC host a professionals helpline, available
24 hours a day, every day of the year, which provides any professional who is concerned about the safety
and well-being of a child with advice and guidance. The helpline can be contacted in a number of ways:
telephone: 0808 800 5000; email: [email protected]; text message: 88858 (Channel Islands: 07786
200001) or through its website.
As arrangements and guidelines are subject to change (and not just changes in legislation), mediators
should keep a regular contact and arrange for updated information in regard to reporting procedures to
be provided to them/their service.
Similarly, mediators should hold sufficient information to enable them to explain to client parents and/or
children and young people directly consulted what will happen following a referral, and should also
ensure that they are able to properly ensure that clients have an immediate next step or onward
destination from the mediator.
Appendix 3
Safeguarding - Dealing with allegations or disclosures
Pre-mediation process:
At first meetings:
Always see individuals separately ahead of any joint meeting. Screening and safeguarding checks should
be carried out again at the point of first meetings. Good practice guidelines would indicate that
individual screening is a prerequisite for mediation.
Check out any comments provided by clients in completing their information forms.
Ensure that any staff are aware of and alerted to the potential for abuse between clients help them to
manage your clients before they get to you by ensuring they are properly and appropriately briefed.
Think carefully about arrangements for client, mediator and staff safety and ensure that you have a
contingency in place should you need to separate clients and/or alert staff that there is a problem
Always ensure that mediation rooms are carefully laid out, allowing sufficient personal space between
clients and with a clear line of exit for all.
At the point of starting the mediation process and signing the agreement to mediate, point out the major
principles within the agreement, including exceptions to confidentiality.
Observe clients carefully, listen carefully - observe client behaviour when together.
At subsequent meetings:
Always check at the beginning of each meeting whether anything has happened since the last meeting
that clients need to discuss or report.
It is important to be aware that in some relationships it is possible for a one-off episode of violence to
occur between individuals this is categorised as post separation or divorce trauma and is caused by the
stress of separation. The reality of a clients situation whether it is that they are to divorce, or that they
realise that their finances are less than or insufficient to their future needs, or where there are difficulties
in relation to shared parenting may all be flash points for an episode of violence between adults.
Mediators should be alert to this situation and be careful to ensure that this is a one-off episode rather
than part of a pattern of on-going violence.
Be clear about safeguarding duties and your organisations policy and procedures take a problemsolving approach between you all.
Reflect back what you have heard and check mutual understanding.
Do not make judgements about either client or any allegation made keep a balanced stance.
Explain procedures and what you intend to/must do and be aware of statutory guidance and local
reporting arrangements.
Give parents as much information as you can as to next steps check that they have an
immediate onward destination from you.
If parents are to report a third party abuser, explain that you will need to check that they have done
so and make a referral yourself.
Report immediately where there is grave concern of a child at immediate risk and/or where a child
requires immediate protection and urgent action is required.
Record promptly and clearly the facts not your opinion or view noting the precise words used,
action decided upon and when/how taken.
Listen carefully.
Do not make promises of confidentiality, and explain that you will have to tell another adult
whose responsibility is to keep children safe from harm.
Take what the child says seriously and recognise the difficulties there are in interpreting what is
said by a child.
Keep questions to the barest minimum to ensure a clear and accurate understanding of what has
been said.
Explain to the child in an age-appropriate way what you will do next and with whom you will share
information.
Record promptly and carefully (using the childs own words), not your opinion or view. Record
action decided upon and when/how taken.
Quick checklist
Be aware and remain alert to the prevalence of unreported abuse throughout the mediation
process.
Cover exemptions to confidentiality early in pre-mediation phone calls ask questions that are
designed to prompt early warning of potential of/for abuse. Inform them that mediations are normally
conducted with both people in the same room - is that likely to present any concerns for them? Mention
that you see people separately before starting the mediation process.
Check your office and mediation room , consider seating arrangements and exits. Cover aspects of
screening and abusive behaviour with your staff. Consider carefully the safety of clients, your staff and
yourself.
Listen to/observe clients carefully ask direct questions. Explore, but do not interrogate or
judge, in order to get clarity. Observe client behaviour and body language when together. Consider client
capacity to take part in mediation
Discuss exemptions to confidentiality in separate meetings/first joint meeting and when they
sign the agreement to mediate.
Have currency of information in relation to local services of support and protection. Also ensure
that you are familiar with reporting procedures and ensure that clients have a clear next step from you
should an allegation or disclosure be made that will end the mediation/lead to reporting. Always
consider the impact of an adult abusive relationship on any child. Always consider whether discussing
any expressed allegation/disclosure would place a child at increased risk of significant harm if so,
reporting, not the discussion of or agreement to reporting, is the priority.
Ensure safe exits for each and both clients. Be in touch with your PPC.