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25 Washburn L.J. 203 (1986)
The 1985 enactment of sections 23-601 through 607(1) of the Kansas statutes introduced a method of resolving child custody disputes that is substantially different from the present adversarial method of litigation. Under this legislation, the court can order the parties in child custody cases to mediate their dispute with an impartial mediator,(2) before the parties resort to litigation. The role of the mediator differs significantly from the role of the judge because a judge decides the dispute for the parties. In contrast, the mediator remains impartial and assists the parties in resolving the dispute for themselves.
The decisions in mediation are reached jointly by the parties, unlike litigation, where the decision is imposed on the parties by a third person. If mediation is successful, the parties have avoided an expensive and inevitably destructive courtroom custody battle. Although court-ordered mediation does not prevent the parties from litigating the dispute if mediation is unsuccessful, mediation does offer an alternative that makes it possible to avoid litigation entirely. Consequently, mediation may offer a more humane and constructive method to resolve disputes involving the custody of children.
In order to appreciate the legislative purpose of the statutes authorizing court-ordered mediation in child custody disputes, it is necessary to understand the mediation process.(4) Many people confuse mediation with other methods of resolving disputes, such as arbitration, conciliation or negotiation. In mediation, the mediator is a facilitator of the discussion between the parties in a disputes.(5) The mediator does not impose any decision on the parties. Rather, the mediator’s goal is to help the parties talk with each other, enabling the parties to reach an acceptable agreement.(6) During mediation the mediator assists the parties in identifying the issues in the dispute and clarifying the priorities of the parties. The mediator also aids the parties in discussing and exploring various options available to them. Areas of compromise are considered and misunderstandings are reduced. The end result is an agreement that the parties have fully discussed and decided on together. The decisions are made solely by the parties themselves; the mediator does not decide any of the issues for the parties.
This process is significantly different from arbitration in which the arbitrator decides the dispute between the parties.(7) Consequently, arbitration is similar to litigation because the decisions are being made by a third person, whereas in mediation, the parties make the decisions.
Mediation also differs from conciliation. In conciliation, the conciliator may encourage the parties to agree on one of several possible options to resolve the dispute.(8) This differs from mediation because the mediator does not pressure the parties to reach any particular option in order to prevent the process from breaking down. In mediation, the mediator must remain impartial.(9) The agreement must be reached by the parties because the parties believe the agreement is the best alternative, not because the mediator believes it to be the best alternative.
Finally, mediation is not negotiation. Although most divorces may be resolved through attorney negotiations, these negotiations are strongly adversarial. In fact, the parties may never speak to each other during the negotiation process.(10) During negotiation the attorneys compromise areas of disagreement based on what they perceive their client’s chances are in a court battle. They do not necessarily negotiate out of a concern for the best interests of the children. Instead, attorneys negotiate against the backdrop of the adversarial system, which encourages cooperation only to the extent that the client’s position is not compromised if negotiations fail and there is litigation.(11)
There are several reasons why mediation is becoming a preferred method of resolving child custody disputes. The primary impetus for the development of mediation in domestic disputes was the dissatisfaction with the adversarial process.(12) Litigation forces parents into a competitive framework, thereby escalating the conflict between them. The unfortunate result of this adversarial process is increased hostility and a greater likelihood of emotionally harming the children.(13)
Mediation, however, is based on cooperation instead of competition. Animosities can be reduced as the couple concentrates on planning for the future of the children rather than dwelling on the past and the failed marriage.(14) In mediation the parties decide, together, their child care plan and the end result is an individualized agreement, taking into consideration the needs of both parents and the children. Because parents have more knowledge and understanding of their children, their agreement will be better and more flexible than an order imposed by a judge, who has limited knowledge of the family.(15)
Another benefit of the individualized agreement is the likelihood that it will be honored by the parties.(16) Not only do parties honor the agreement because it is tailored to meet the parents’ concerns and the children's needs, but the parties feel a personal commitment to the agreement.(17) Parties are more likely to honor the agreement because they have worked together, face-to-face, to reach it. However, if the custody arrangement was imposed on the parties by the judge or the parties “agreed” to a stipulation negotiated by attorneys because it was the best deal they could get in order to avoid the uncertainties of trial, the parties have little emotional attachment to the custodial arrangement.
Because successful mediation reduces hostility and results in agreements that are more likely to be honored by the parties, there is a substantial savings of court time. Not only does successful mediation avoid litigation of the initial custody dispute, but the major timesaving benefit for the courts is the reduction in subsequent hearings to modify the original decree.(18) The lack of relitigation also benefits the children, because they do not become pawns in the continuing battle between their parents.(19) Even if the parties do have future disagreements concerning custody, they know they can return to mediation, rather than litigate the dispute.
Finally, divorce attorneys benefit from mediation because their clients who participate in child custody mediation are less upset, angry and irrational.(20) The end result is a less complex and emotionally charged case, with a satisfied and appreciative client.(21)
The numerous benefits of mediation, and the success of mandatory mediation of child custody disputes in California,(23) convinced the members of the Family Law Advisory Committee (FLAC) of the Kansas Judicial Council to study possible legislation on mediation in Kansas.(24) The Committee studied mediation for almost three years before the final draft of section 23-601 was presented to the Judicial Council for approval.(25)
The final FLAC proposal was significantly more moderate than the original discussions of the Committee members. At the outset, the Committee contemplated regulating all family law mediation within Kansas by establishing standards of practice for family mediators.(26) However, this objective was abandoned for two reasons.
First, the Committee members realized that regulating mediation on a statewide basis would require the legislature to establish a licensing board. Because the legislature had been hesitant in the past to expand the state government and to allocate funds for new bureaucracies, the Committee members did not believe legislation creating a mediation licensing board would be passed by the legislature.(27)
The other reason the Committee members did not attempt a statewide regulation of mediation was the realization that there were no uniformly recognized qualifications for family mediators. Mediation was a new profession, and consequently, there were no academic degrees or national accrediting organizations that regulated mediation training programs. Because of this lack of universally recognized qualifications for mediators, it would be difficult to establish competency requirements for a Kansas licensing board.(28) The Committee members also realized that a mediator handling a property division in a divorce would require significantly different qualifications than a mediator handling custody issues.(29) Consequently, FLAC members abandoned their original plan of regulating and licensing all mediation and concentrated on a more feasible mediation proposal.
Through various discussions, the members of FLAC decided that mediation could be best used in Kansas by establishing statutory guidelines for court-ordered mediation of child custody disputes.(30) The committee members perceived many advantages to limiting legislation to this one area. By proposing guidelines for court-ordered mediation in custody disputes, the Committee would be accomplishing its fundamental objective of encouraging mediation and creating alternatives to the adversarial model of resolving family disputes.(31) Also, child custody issues seemed particularly suited to the mediation model for several reasons.
First, child custody disputes were seen to be the most damaging to the family. According to one judge “the damaging effects of custody litigation are uncertainty, painful psychological probing (e.g., “Who do you love more, Mommy or Daddy?”), and competitive parental bribery. The magnitude of these effects is a direct function of the time it takes to conclude the proceedings.”(32) However, a nonadversarial alternative to resolve these disputes could provide the court with a more humane method of dealing with these conflicts.(33)
Second, the success of mandatory child custody mediation in California was encouraging.(34) For example, the San Francisco Superior Court system instituted mandatory mediation of custody and visitation issues in 1977. Before 1977, there were more than five contested hearings on child custody and visitation per day. However, in 1980 there were only five contested hearings for the entire year. Consequently, as a result of mandatory mediation, in “one year there were fewer hearings than there had been in a single day under the old system.”(35) The Committee members believed that because of the success rate in San Francisco, mediation could help to alleviate crowded court dockets in many judicial districts in Kansas.(36)
Another reason the Committee decided to limit mediation legislation to court-ordered child custody issues was the difficulty in regulating mediation of property issues. Not only was there a fear that overreaching and domination by a more financially sophisticated spouse could occur, but it would be difficult to determine the adequate qualifications of a mediator in property issues.(37) However, qualifications for child custody mediation had been established several years earlier in California.(38) Also, the committee believed that child custody issues could be handled effectively by behavioral scientists, who may not have the necessary skills to mediate financial matters.
The Committee also decided that by using court-ordered mediation, two important issues could be handled by the judge -- when to order mediation and who was qualified to act as the mediator.(39) The trial judge could order mediation in contested child custody issues, either at the request of the parties or on the court’s own motion, if the court believed mediation would be beneficial and mediation services were available.(40) Also, there would be no need to set up a licensing board to determine and regulate the qualifications of mediators.(41) Rather, the judges could appoint mediators by referring to statutory guidelines that set out mediator qualifications.
Finally, the Committee decided to limit mediation legislation to court-ordered mediation of child custody issues because the Committee hoped that experimenting with mediation in a limited subject area may help in drafting future legislation regulating mediation practices. If mediation of child custody issues was successful, the state would be developing a group of mediators whose skills could serve as guidelines for future legislation establishing statewide mediator competency guidelines. Also, the Committee did not intend to limit, in any way, the private use of mediation.(42) Consequently, the Committee members hoped that private mediators would begin to establish their own guidelines, practices and professional organizations, which would develop universally recognized professional standards for mediators dealing with all types of family disputes.(43)
The first section, 23-601, defines the mediation process.(44) This section was included by the drafters because of possible misunderstandings about the process of mediation.(45) A definition at the beginning of the statutory provisions clarifies this process for judges, attorneys and parties who will be involved with court-ordered mediation.
The definitional section emphasizes that it is the parties in mediation who are responsible for reaching a mutually acceptable agreement concerning custody or visitation. The mediator is neutral in the process, and aids "the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement."(46) The resulting agreement, however, must be "based on the decisions of the parties and not the decisions of the mediator."(47)
Another educational purpose of this section is found in the Kansas Judicial Council comment.(48) In the comment, the drafters recognized that mediation may not be successful in resolving all the issues concerning custody or visitation. However, if mediation can resolve at least some of those issues, it can reduce litigation time. Only those issues that remain in dispute need to be submitted to the court for resolution. Consequently, the lack of agreement on all issues does not mean mediation has failed, but, instead, it can be used to reduce the number of litigated issues.(49)
Subsection (a) of section 23-602(50) sets out the parameters of the court’s authority to appoint a mediator.(51) The court has the discretion to order mediation of any issue that is contested in child custody or visitation cases. Not only can the court order mediation based on the court’s own motion, but the parties can also file a motion requesting court-ordered mediation.
Because the court may order mediation of "any contested issue of child custody or visitation at any time,"(52) mediation can be used in any case that involves custody or visitation. This includes actions for divorce, separate maintenance, annulments, interim or interlocutory custody orders in divorce, motions to modify custody following the divorce, custody disputes between parents of children born out of wedlock, paternity suits in which custody or visitation is requested and requests for visitation by grandparents and stepparents.(53)
This broad application(54) of the mediation statute was intentional on the part of the drafters, because successful mediation was perceived as a better alternative to litigation for the children involved in custody disputes. Consequently, for the benefit of the children, all custody and visitation disputes should have court-ordered mediation available as an alternative to the adversarial process, regardless of the marital status of the parties.(55)
In lieu of setting up a state licensing board to determine the competence of mediators, FLAC decided to set out qualification guidelines for the court to follow in appointing mediators.(56) Under this procedure, it is the judge’s obligation to determine whether a mediator is qualified before appointing that person to mediate a child custody dispute.
Subsection (b) of 23-602(57) sets out four criteria(58) the court should consider in appointing the mediator. The first factor is whether the parties have agreed that a specific mediator be appointed by the court.(59) The court is not bound by this agreement and it is within the court's discretion to appoint a different mediator. In exercising this discretion, the court should consider whether the mediator selected by the parties has training and experience in mediation, and meets the other criteria under subsection (b).
The second factor the court should consider in appointing a mediator is “the nature and extent of any relationships the mediator may have with the parties and any personal, financial or other interests the mediator may have which could result in bias or a conflict of interest.”(60) In applying this criterion, the court should avoid appointing a mediator who previously has acted as a therapist, counselor or attorney for either party.(61) Because the process of mediation requires an impartial mediator, the mediator should not have prior significant business or personal contacts with the parties. For example, if the court were to appoint a mediator who has acted as the tax attorney for the husband’s company, the wife may perceive this mediator as being biased toward the husband’s interests. As a result, the court should avoid appointing a mediator who has had a professional or personal relationship with either of the parties in the past. This does not mean, however, that the court cannot appoint a person who has successfully mediated prior disputes between the parties.(62) In this situation, the mediator previously acted in an impartial capacity and the court should not hesitate to continue the past mediation relationship, particularly if the parties request the appointment of this particular mediator.
The third criterion for appointing a mediator requires the court to assess the knowledge of the mediator in six areas.(63) These six factors require the mediator to have a blend of knowledge of legal procedure, community resources and behavioral sciences. The first factor states that the mediator should know about the Kansas judicial system and the procedure used in domestic relations cases. This information helps the parties understand what will happen to their case if an agreement is reached. Also, the mediator should know the kind of information the court would request to support the agreement. Finally, the mediator should have an understanding of what the court's procedure will be if no agreement is reached. All of these factors are important to successful mediation, particularly since the mediated agreement ultimately must be presented to the court and some involvement with the judicial system is unavoidable.
Second, the mediator should know of other resources in the community where the parties can be referred for assistance. This knowledge is important if the parties or their children need special assistance, which becomes apparent through the mediation. For example, if one of the children is suffering from emotional distress, it may be appropriate for the mediator to refer the child for counseling. Also, the mediator's knowledge of low income assistance or other programs may create more options for the parties in working out their custody arrangements.
The last four factors state that the court should take into consideration the mediator’s knowledge of child development, clinical issues relating to children, the effects of divorce on children and the psychology of families. These factors are important in helping the parties reach an agreement that is psychologically in the best interests of the child. For example, a mediator should be aware of research that shows children of divorce cope better with the stress of the divorce if they maintain their predivorce activities. Consequently, the parents should discuss keeping the child in the same school, neighborhood, religion and extracurricular activities. Children also adjust better to the divorce if they have continue contact with both parents, making joint custody an important consideration for the parents.(64) Mediators should also be aware that many of the short-term behavioral problems children exhibit after they have visited one parent are a normal reaction to the child's change of routine and these “acting-out” periods are not a result of a parent's lack of control during the visit.(65) All of this information can be helpful to the parties in reducing misunderstandings and achieving a workable agreement for the child’s custody. This knowledge also is essential if the mediator is to perform his or her duty under section 23-603 (a)(8), which is to “ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children.”(66)
Subsection (a) of 23-603(67) requires the mediator to inform the parties about the mediation process and sets out the framework of the mediation sessions.(68) Under subsection (a)(1), the mediator must inform the parties of the costs of the mediation.(69) The drafters believed that the parties should know before the mediation session begins what the fee will be for the mediator’s services. Although the court has the authority under section 23-607 to require either or both parties to pay the costs of mediation, generally the parties mediate the question of who will be responsible for the fees.(70) A common mediation technique is having both parties assume some responsibility for the fee, so that both parties feel they have an investment in the process. Even though there may not be any fees involved because the court-appointed mediator is a court services officer, many mediators believe at least a minimal fee should be charged to give the parties a feeling of investing in the mediation process.(71)
The second and third duties of the mediator are advising the parties that the mediator does not represent ether or both of them and also describing the mediation process. These provisions were necessary so the parties understand the mediator is acting in an impartial capacity and is not a representative or advocate of the parties. This is particularly important if the mediator has a law degree. If the parties are not told otherwise, they play believe they are receiving legal services as clients of the attorney. The mediator should be certain clients understand that rather than acting as an advocate for either or both of the clients’ interests or taking charge of the legal issues in the dispute, the mediator must remain impartial because it is the parties who are responsible for resolving the issues. If the parties view the mediator as an attorney or therapist, they may give more weight to the mediator’s suggested options. However, it the parties understand the mediation process, they will realize that suggestions by the mediator are given no independent or significant weight and the parties should feel free to adopt their own options.(72)
The fourth duty of the mediator is disclosing “the nature and extent of any relationships with the parties and any personal, financial or other interests which would result in bias or a conflict of interest.”(73) As stated earlier, a mediator should not mediate between parties where the mediator may have assisted the parties in some other professional role.(74) Any prior relationships between the mediator and either or both of the parties must be fully discussed so that the mediator can assess whether the neutrality of the mediator is being compromised.
Another duty of the mediator is informing the parties that they should obtain independent legal advice.(75) Because the parties are not receiving legal representation from the mediator, the parties must be told that they should obtain independent legal advice to protect their legal interests throughout the mediation process. The parties should not be bargaining on, or agreeing to, a custody arrangement if they are doing so without the knowledge of the legal parameters of their case. Although an attorney-mediator could provide the parties with this legal knowledge,(76) there is the danger that the parties may not perceive the mediator as impartial, particularly if the advice favors one party’s position. Consequently, the parties should receive legal advice from an independent attorney whose duty is protecting the best interests of the client. In addition, if the mediator is a non-attorney, the mediator would be perceived as practicing law if the mediator assessed the legal ramifications of the parties’ case. Because of these considerations, the parties must be informed of the necessity of obtaining independent legal advice during the mediation process.
Also, it is important to have legal advice throughout the mediation process rather than waiting until the parties have reached an agreement, which then is presented to their attorneys for review. If the attorneys believe the client has entered into an agreement that is not in the client's best interests, the entire mediation process has been a wasted effort.(77) As a result, parties should be warned to get legal advice during the mediation process to prevent the parties from becoming committed to an agreement the attorney believes is undesirable.
In order to preserve the confidentiality of the mediation session, the mediator must allow only the parties to attend the sessions. This prohibition extends even to the parties’ attorneys.(78) However, the mediator may consult and meet with other persons if the parties agree.(79)
If the parties agree at the end of the mediation sessions to disclose to their attorneys the factual documentation revealed during the mediation, the mediator has a duty to supply this information to the attorneys .(80) This duty was added because an attorney reviewing any agreement reached by the parties would need to know the rationale of the parties in reaching the agreement. Any factual documentation would be helpful in supporting the parties’ decision making process that resulted in the agreement.(81) However, only the parties can agree that this information should be provided to the attorneys.(82) Without this agreement, the mediator cannot be forced to reveal this factual documentation.
The mediator has a duty to “ensure that the parties consider fully the best interest of the children and that the parties understand the consequences of any decisions they reach concerning the children.”(83) This section requires the mediator to be aware that reaching an agreement is not the only goal of mediation. In addition, the mediator has an ethical obligation to require the parties to consider the best interests of the child.(84) For example, studies show that severing the parental contact of one parent has damaging psychological effects on children, even if the residential parent is doing an excellent job raising the children. Any agreement that substantially eliminates contacts between the children and a parent would not be in the best interests of the child.(85)
In fulfilling the obligation of protecting the best interests of the child, the mediator must try to assess with the parties the needs of the children and use these needs as a basis for testing the appropriateness of any options discussed in mediation. The mediator also can meet with the children to determine their concerns and needs under subsection (b) of this section.(86)
The mediator must “inform the parties of the extent to which information obtained from and about the participants through the mediation process is not privileged and may be subject to disclosure.”(87) In fulfilling this duty, the mediator should inform the parties that there are three specific exceptions to the confidentiality of court-ordered mediation.(88) The first exception is information of child abuse. If the mediator learns about child abuse during mediation, the mediator is required to report the abuse under the Child Abuse Reporting Act.(89) Also, the commission of a crime during the mediation session or the express intent to commit a crime in the future is not confidential.
In addition, the mediator should inform the parties that even though the mediation sessions are confidential, the parties may discover information during the sessions that can be used by the parties against each other in litigation. Information that can be discovered through independent means may he admissible in court even though the information is first learned in mediation. For example, a party may admit in mediation that he or she has a homosexual lover. If mediation is unsuccessful and the case goes to trial, that party could be called as a witness and asked questions about the homosexuality.(90) If the court perceives these questions to be relevant, the party will be required to answer, even though this information was revealed initially in mediation.(91) Because of this lack of confidentiality involving information that can be obtained by other means, some parties may abuse mediation by using it to discover information from the other party, solely for the purpose of using this information in litigation. Parties should be warned of this possibility.
Another limitation of confidentiality is the mediator’s inability to prevent third parties from disclosing information obtained during the mediation session.(92) For example, if the parties agree in mediation to hire a psychologist to evaluate the children, the mediator cannot bind the psychologist to the agreement between the mediator and the parties that the information obtained during mediation is confidential. Rather, the parties may have to look to other privileges that cover the confidentiality between the psychologist and the parties.(93)
Subsection (b) of 23-603(94) provides that the mediator 1) may meet with the children of any party; and 2) with the consent of the parties, may meet with other persons.
The mediator does not need the consent of the parties to meet with any of the children of the parties. The drafters included this provision because the mediator has an independent duty to protect the best interests of the children.(95) In order for the mediator to fulfill this obligation, it may be necessary for the mediator to meet with children to assess their needs.(96)
Not only may the mediator meet with a child who is the subject of the custody dispute, but the mediator may meet with any children of one of the parties. This would include stepbrothers or stepsisters of the child or adult brothers and sisters. The drafters believed meeting with other children whose custody was not in dispute may provide the mediator with more information about the best interest of the child whose custody is disputed.(97) The mediator may need to know the type of relationships the disputed child has with the other children and how the custody arrangement may affect the concerns of the other children.(98) Therefore, the mediator was allowed to meet with any children of one of the parties.
With the consent of tile-parties, the mediator may meet with other persons. This provision was added for several reasons.(99) First, meeting with the children's grandparents, stepparents, child care providers, teachers or others involved in the child's life may give the mediator more information concerning the best interests of the child. Also, meeting with therapists, physicians, the parties' attorneys or other professionals may alert the parties and the mediator to special considerations in making a custody agreement. Finally, once the agreement is reached it may be important to meet with, and explain the agreement to, persons who may sabotage the agreement if these parties do not know the rationale behind the agreement.(100)
Once the parties have reached an agreement, the mediator is required to “make a written summary of any understanding(102) reached by the parties.”(103) The drafters required the mediator to make this written summary of the parties’ understanding so the parties could see, in writing, the basic terms of their agreement.(104) Next, the mediator must provide a copy of this summary to the parties and their attorneys. This requirement was added by the legislature so the parties and their attorneys could use the summary as a basis for drafting a formal agreement.(105)
The mediator is also required to inform the parties, in writing, to obtain legal assistance in drafting a formal agreement or in reviewing any agreement drafted by the other party's attorney.(106) The drafters included this provision because the parties should not enter into an agreement without the advice of an attorney concerning the legal ramifications of the terms of the agreement.(107) Also, the drafters believed that writing a formal agreement was not the role of the mediator,(108) particularly if the mediator was not a lawyer.(109)
The next provision under subsection (c) of 23-603 states that any understanding reached by the parties “shall not be binding upon the parties nor admissible in court until it is reduced to writing, signed by the parties and their attorneys, if any, and approved by the court.”(110) This language was added by the legislators because they were concerned about the binding effect of the agreement.(111) It was the belief of the House of Representative's membership that the parties should not be bound by an agreement and the agreement should remain confidential until three specific things happened: 1) the parties had the advice of their attorneys; 2) the agreement was put in written contract form, signed by the parties and their attorneys; and 3) the agreement was approved by the court.(112) Therefore, the agreement cannot be introduced into evidence if either party later rejects the agreement before it is reduced to writing, signed by the parties and their attorneys and approved by the court. The problem with this language, however, is that the agreement is inadmissible in court until it is approved by the court. Because only admissible evidence may be presented in court, it is difficult to imagine the procedure an attorney would follow to present inadmissible evidence for court approval. Perhaps the best way to interpret this language is to follow legislative intent that the agreement is inadmissible until it is reduced to writing and signed by the parties and their attorneys. However, the agreement is not binding on the parties until it is approved by the court.(113)
The last provision in this subsection sets out the procedure the mediator should follow if the parties are not represented by attorneys because they have refused to obtain independent legal advice concerning their tentative agreement. In these cases the mediator “shall provide to the court the written summary of any understanding signed by the parties, which, if approved by the court, shall be incorporated in the order of the court.”(114) This language was added by the drafters because they believed parties should not be forced to retain independent legal counsel in order to have the court consider their mediated agreement.(115) Consequently, unrepresented parties must sign the summary of any understanding they have reached and the mediator provides the court with this summary. The court then decides whether to approve the agreement, and if approved, the agreement is incorporated into the court’s order.
Subsection (d) of 23-603(116) allows the mediator to act as a mediator in later disputes between the parties. This language makes it clear that if the parties are satisfied with the mediator’s services, then nothing prevents the parties from hiring the same mediator for future disputes.(117) However, the mediator must “decline to act as an attorney, counselor or psychotherapist(118) for either party during or after the mediation or divorce proceedings unless the subsequent representation, counseling or treatment is clearly distinct from the mediation issues.”(119)
This prohibition was added because the drafters believed it is inappropriate for an impartial mediator to mediate a custody dispute between the parties and then, later, be hired by one of the parties as an attorney or an expert witness to assist that party in modifying the mediated agreement.(120) Therefore, in order to protect the impartiality of mediation and to preserve the appearances of propriety, the mediator may be hired by one of the parties in the future only if that later professional relationship does not involve, and is clearly distinct from, the mediated issues.
One of the goals of mediation is helping the parties exercise self determination in resolving their dispute. Consequently, coercive mediation contradicts the objective of self determination, and ordering parties into mediation may be perceived as violating this goal. However, many parties may be ignorant of the mediation process and ordering them into mediation could educate them about an alternative method to resolve their dispute. In balancing these concerns, section 23-604(a)(121) allows the parties to terminate mediation anytime after the second(122) mediation session. By requiring the parties to attend two sessions,(123) the parties will have a good understanding of the mediation process.(124) However, if a party does not believe mediation will be successful after the second session, then the participant should be allowed to terminate the mediation.(125)
The mediator may terminate the mediation in two situations.(126) First, the mediator is required to terminate the mediation if the mediator believes that continuing the process will harm or prejudice either of the parties or the children.(127) This provision prevents the parties from using the mediation in a destructive manner. In addition, it requires the mediators to use their independent judgment to prevent agreements that not only might be harmful or grossly unfair to the parties, but also to the children.(128)
The mediator also is required to terminate mediation if "the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely."(129) Under this language, the mediator must assess whether the parties are mediating in good faith, thereby preventing unproductive or bad faith negotiations.(130) This provision also recognizes that not all disputes are appropriate for mediation.
If mediation is terminated by either a party or the mediator before an agreement is reached, the termination must be reported to the court.(131) However, the mediator cannot inform the court whether it was the mediator or a party who terminated the mediation, nor can the mediator state a reason for the termination, unless the termination was caused by the mediator’s bias or a conflict of interest.
This provision protects the confidentiality of the mediation process(132) and also assures the parties that the mediator is a neutral party. If the mediator were required to report the reasons for the termination of the mediation sessions, the parties would be negotiating under the threat that if the mediator thought, correctly or incorrectly, that a party was acting unreasonably, the judge would be informed of the party’s behavior. The parties may assume that the judge would use this information to “punish” the offending party by deciding the custody issue against that party’s interests.(133) Consequently, the mediator is prohibited from revealing the reasons for the termination of mediation, unless the termination was because of the mediator’s bias or conflict of interest. In these situations, however, the court should be informed that the mediator is biased or has a conflict of interest, because mediation may be successful if the court appoints a different mediator.
Under section 23-605, the mediator is required to "treat all information obtained from and about the participants through the mediation process as confidential and shall not disclose any such information except as necessary for the conduct of the mediation or as required by law."(135)Under this language, the mediator must not disclose any information obtained from the parties except in two situations. The first situation is when the disclosure is necessary in order to conduct the mediation process. Disclosure may be required under this exception when the parties agree to hire a third person who provides services or information needed during mediation. For example, the parties may hire a psychologist to help them determine the best interests of the children in resolving the custody dispute. In this situation, it may be necessary for the mediator to meet with the psychologist and share information that was discussed during a mediation session.(136) Another example of this exception may include discussing the reasons for the parties’ agreement with the children, parents, stepchildren or grandparents or the parties’ attorneys, to ensure the agreement is understood, and respected by these individuals.(137) Also, the parties may consent to the mediator releasing any factual documentation revealed during mediation to the parties’ attorneys, pursuant to section 23-603(a)(7).(138)
The second exception to the confidentiality of the mediation process is the disclosure of information that is required by law. According to section 23-606 and the Child Abuse Reporting Act,(139) the mediator is required to report information about child abuse. Also, section 23-606 states that there is no privilege of confidentiality concerning the commission of a crime during the mediation process or the express intent to commit a crime in the future.(140)
Another limitation of confidentiality is the use of information revealed in mediation by the parties in subsequent litigation if that information can be discovered through independent means.(141) For example, if a party admits in mediation to having had an extramarital affair with the next-door neighbor, the other party may be allowed to call the next door neighbor to the stand during litigation to question the neighbor about the affair.(142) Even though this information was originally discovered during the mediation session, the court may allow the neighbor’s testimony because the neighbor was not a participant in the mediation, and thus, not covered by the privilege.(143)
The rationale for the confidentiality in mediation is allowing the free flow of information in mediation in order to reach an agreement in the spirit of cooperation, trust and fairness. However, because of the limitations of confidentiality, parties must realize that they may need to temper the candor of their discussions, because in some situations the mediator will be required to reveal information, such as in cases of child abuse, and in other situations, the other party may use the information to discover an independent evidence source and present the evidence at trial.(144)
Subsection (a) of section 23-606 gives tire mediation party the authority to prevent the disclosure of confidential information revealed during the mediation process. According to the statute a "party ordered to participate in mediation under K.S.A. 1985 Supp. 23-602 has a privilege in any action to refuse to disclose, and to prevent a witness from disclosing, any communication made in the course of the mediation."(145) This privilege can be claimed by the party or by anyone the party has authorized to claim the privilege. According to the drafters of this provision, the privilege was “necessary to promote the frank and open discussions required for effective mediation.”(146) As a result, during litigation neither party can reveal the discussions that took place during mediation.(147)
However, there are three specifically listed exceptions to the privilege. First, information concerning child abuse is not privileged because the court-appointed mediator is required to report child abuse under section 38-1522.(148) The drafters decided to include court-appointed mediators as persons obligated to report child abuse for several reasons. One reason was that many of the persons who would be doing court-appointed mediation, such as social workers and psychologists, already were required to report child abuse.(149) Also, because the mediator must consider the best interests of the child, reporting child abuse is consistent with the role of the mediator.(150) Finally, there is a strong legislative policy in Kansas to detect ant report child abuse. Therefore, the drafters of the mediation legislation decided that requiring the mediator to report child abuse was compatible with the role of a court-appointed mediator.(151)
Another exception to the mediation party privilege is the commission of a crime during the mediation process.(152) This would include any acts of spousal abuse, such as assault and battery, that may occur during the mediation session.(153) If this behavior occurs, the mediator may determine that the parties are inappropriate for mediation and terminate the mediation according to the mediation statute because “the continuation of the process would harm . . . one or more of the parties.”(154)
Finally, a communication of an express intent to commit a crime in the future is not privileged.(155) The drafters believed that the protection of society from criminal acts outweighed the need for confidentiality in mediation and consequently, did not extend the privilege to anyone who expressed an intent to commit a future crime.(156)
Not only do the parties have a privilege under the Kansas statute, but the mediator also has a separate privilege. Under section 23-606(b), “[n]o person appointed as a mediator under K.S.A. 1985 Supp. 23-602, nor that person’s agent, may be subpoenaed or otherwise compelled to disclose any matters disclosed in the process of setting up or conducting the mediation process except as to matters not privileged in subsection (a).”(157) This provision allows the mediator to quash any attempts by one of the parties or other individuals to use legal means to force disclosure of confidential information.(158) It appears from the language of this provision that the mediator can assert this privilege even if both of the parties waive their privilege under subsection (a), and consent to the mediator disclosing confidential information.(159)
The last section of the court-ordered mediation statute provides that “[t]he costs of any mediation ordered under K.S.A. 1985 Supp. 23-602 shall be taxed to either or both parties as equity and justice require, unless the parties have reached a reasonable agreement as to payment of costs.”(160) This provision allows the court to assess the costs of mediation in custody disputes, which is consistent with the power of the court to tax costs and fees in divorce cases.(161) Under this statute, the court can order either or both of the parties to pay the mediation costs only if the parties have not reached a reasonable agreement concerning the payment of the costs. This language was added(162) because it is a common mediation technique to have the parties agree to share at least part of the costs of mediation and this fee payment arrangement is incorporated into the final stipulation.(163) Consequently, both parties then have a financial stake in the mediation process. Even in cases where there may be no costs because the mediator is a court services officer, some mediators believe the parties should pay at least a nominal fee, thereby instilling in the parties a sense of investing in the mediation process.(164) However, if the parties have not reached a reasonable agreement concerning the costs of mediation, the court may order either or both of the parties to pay these costs.
An attorney may become directly involved in mediation in one of several ways. One approach calls on the attorney to assume the role of the mediator. Another approach puts the attorney in an advisory role, in which the attorney is called in at different points during the mediation process, to inform the parties of their legal rights and to advise them of the legal ramifications of their decisions.(165) A variation to this approach calls on the attorney to enter the mediation process as a member of an interdisciplinary team, composed of the attorney who deals with the legal issues, and the mediator, usually a mental health professional, who actually conducts the mediation.(166) Finally, an attorney may become indirectly involved in mediation by being called on by a client, who has participated in mediation, to give independent legal advice concerning the agreement reached in mediation.(167)
The main concern facing the attorney who is acting as a mediator is Canon 5 of the Code of Professional Responsibility which states “[a] lawyer should exercise independent professional judgment on behalf of a client.”(168) In mediation, the mediator is involved with two individuals with adverse interests. Consequently, exercising independent professional judgment on behalf of one mediation party may injure the rights of the other mediation party. This possible conflict of interest involved in a single attorney performing mediation for a divorcing couple has been the subject of several state bar association ethics opinions. These opinions both oppose and support attorney involvement in mediation depending on whether the ethics committee perceives the attorney as representing the mediation participants or simply assisting in the mediation process as a neutral third party.
For example, present opinions from the Washington(169) and New Hampshire(170) ethics committees have ruled that an attorney-client relationship exists between the attorney and the mediation participants. This is an unfortunate position because once an attorney-client relationship has been established the attorney is obligated by the Code of Professional Responsibility to exercise independent judgment on behalf of the client,(171) and to represent the client zealously within the bounds of the law.(172) It is hard to imagine a situation in which an attorney could assume the essential role of neutral mediator or advisory attorney and at the same time use independent judgment in zealously representing both of the mediation participants whose interests are diametrically opposed. As a result, the Washington and New Hampshire ethics committees ruled that attorneys could not participate in divorce mediation because they could not adequately protect the interest of both parties.(173)
A more enlightened approach to this problem has been taken by the ethics committees of Connecticut,(174) New York City(175) and the City of Boston.(176) These opinions recognize that the problems of representation do not exist if the attorney is not acting in a representative capacity. Therefore, these opinions require the attorney to inform the participants that the attorney-mediator is not representing either party.(177)
This is also the position taken by the Kansas Bar Ethics Committee in a recent opinion. The Kansas opinion states that the attorney should “[c]learly and fully advise the parties of the limitations on his or her role and, specifically, of the fact that the attorney represents neither party and that, accordingly they should not look to the attorney to protect their individual interest or to keep confidences of one party from the other.”(178) This requirement informs both the mediation participants and the attorney that no representation exists, thereby avoiding any potential conflict of interest problems for the attorney and eliminating the participants’ perception that the attorney-mediator is a protector of their individual rights.
The major advantage to an attorney being directly involved in the mediation process is the attorney's ability to fully inform the parties of their legal rights, as well as the legal ramifications of their agreement.(179) This is a task that even a well informed lay mediator is incapable of doing because of the prohibition against the unauthorized practice of law. The main question facing the attorney in this situation is the extent to which the attorney can go beyond merely informing the participants of their rights. One author states that the major benefit of attorney involvement in mediation is the attorney’s ability to tell the participants what the law provides and what the court would likely do in their case.(180)
However, this position was rejected by the American Bar Association (ABA) in the Standards of Practice for Lawyer Mediators in Family Disputes (ABA Mediator Practice Standards). Standard II § C of the ABA Mediator Practice Standards states the “mediator may define the legal issue, but shall not direct the decision of the mediation participants based upon the mediator's interpretation of the law as applied to the facts of the situation.”(181) The ABA task force that drafted the comments to the ABA Standards justified this restrictive approach by stressing the need for the participants to seek independent legal advice. According to the ABA task force, allowing attorney-mediators to express their opinion on specific legal issues would cause the participants to view the mediators’ opinions as an alternative to seeking independent legal advice and result in the parties being steered into accepting one particular solution.(182)
In contrast, the Kansas ethics opinion appears to allow this type of opinion information. The Kansas opinion states that an attorney performing mediation should “provide impartial legal advice and assist in reducing the parties’ agreement to writing only where the attorney fully explains all pertinent considerations and alternatives and consequences to each party of choosing the resolution agreed upon.”(183) Although this provision is somewhat ambiguous it is reasonable to assume that the process of explaining “all pertinent considerations” includes the attorney's opinion on the possible outcome of a specific agreement if the court reviewed it.
Another indication of the Kansas position can be found in the FLAC amended version of the ABA Mediator Practice Standards. FLAC deleted the ABA language that prohibited the mediator from giving an interpretation of the law as applied to the facts in the parties' case. Instead, FLAC added a provision that stated the “mediator shall advise the participants together as to the mediator's best opinion of what the court would do with their case if required to review it. The opinion should be revised if warranted by the facts that come out in the course of mediation.”(184) In its comment, FLAC acknowledged the concerns expressed by the ABA task force that an attorney may be perceived as taking control of the mediation process if the mediator gives legal advice rather than allowing the parties to make their independent decisions. However, FLAC members believed the mediation participants needed to know what the court might do in their case. Without this information the mediation participants could not make an informed decision about whether they would reach an agreement or litigate.(185) Also, the attorney-medidtor’s neutral assessment of the legal parameters of the parties’ case could be valuable in complementing, or even counterbalancing, the adversarial assessment the parties may be receiving from their attorneys.
One reason for the strict approach taken by the ABA, which prevents the attorney-mediator from giving legal advice, is the need for the parties to seek independent counsel. Because the parties are not trained in the law and therefore are incapable of knowing or asserting their legal rights in the divorce setting, a party may be susceptible to fraud or overreaching by the other party. This is particularly true in a situation where the parties are mediating the issues of property settlement, child support and maintenance. Every with the full disclosure of their legal rights given to them by the attorney-mediator, the parties may lack the knowledge to determine whether the property settlement, maintenance or child support agreement is truly fair and equitable.
However, this concern is not present in the same degree under section 23-601. The only thing being mediated under this provision is child custody. The parties do not need any special knowledge to determine what is in the best interest of their children. This is a decision that results from the parties’ individual knowledge of their own particular situation, and each other’s ability and willingness to care for the children. In addition, the child custody agreement is not a final disposition of the issue, in the same sense as the property settlement. The parties can seek to have custody changed in the future by showing a change in circumstances.(186) This is not the case in a property settlement where the agreement is considered the final disposition of the property between the parties.(187)
As a result the underlying concern expressed by the ABA, the need to seek independent counsel to avoid unfair results, which justifies the strict position on the attorney expressing a legal opinion, is not present to the same extent when mediating child custody. Therefore, the prohibition against the attorney giving an opinion as to the legal matters involved in child custody mediation is unnecessary.
Another problem with the restrictive ABA approach is that it does not allow an attorney-mediator to use past experience in the adversarial process. The experienced attorney has been exposed to the particular local customs and the judges in the area. With this experience the attorney-mediator is aware of the types of agreements that the local judges will approve. If allowed to use this knowledge, the attorney-mediator could substantially reduce the time spent in mediation by steering the parties away from settlement agreements which include options the attorney knows the court will not accept.(188)
The major problem in allowing the attorney to freely advise the participants on all the legal issues in their case is the danger that the participants will be unable to perceive the attorney as neutral.(189) Regardless of what the attorney’s opinion is, it will undoubtedly be unfavorable to the position of one of the parties. This can best be avoided by the attorney informing the parties of the possible problem at the onset, and making it clear that the opinion in no way reflects a preference for one party the other. In addition, the attorney should phrase the advice in terms of what the parties might be told if they sought independent counsel, thereby satisfying the parties’ needs and avoiding possible conflicts.(190)
Based on the Kansas ethics opinion and the most recent version of the FLAC Standard of Practice for Lawyer Mediators in Family Disputes, it appears that Kansas will allow the attorney who is involved in mediation to not only inform the participants of their legal rights, but also to give an opinion on other legal matters that the participants should know in reaching an informed decision.
An attorney-mediator also may encounter ethical problems if the attorney participates in mediation with a non-attorney mediator. Disciplinary Rule 3-103(191) prohibits an attorney from practicing law with a non-lawyer. This situation was specifically addressed in the Kansas ethics opinion. The ethics opinion stated that an attorney can mediate with a non-attorney if the attorney is the only person who gives legal advice and performs the other legal services. In addition, the attorney and non-attorney should bill separately for their services, instead of sharing fees.(192)
An attorney whose client is participating in mediation may be placed in a difficult position because of the attorney's obligation to protect the interest of the client on the one hand and the client's desire to avoid the adversarial process on the other. Thus, the key to advising a client who is participating in mediation is establishing a means to protect the client's interests without interfering with the mediation process.
One way to avoid any interference by a party's attorney is to have the attorney involved from the beginning. In this situation the attorney would advise the client on specific legal issues throughout the mediation process. The attorney could protect the party's individual rights and also facilitate the mediation process by assuring that the final agreement reached by the parties would be in accord with their individual wishes as well as the attorney’ perception of what is in the best interest of the client.(193)
The problems with this approach include the added expense to the parties, in paying separate counsel in addition to the mediator, as well as the danger that outside attorneys will inject too much of the adversarial nature of their position into mediation. The ABA Committee thought that these considerations were outweighed by the need to seek independent counsel.(194)
Despite the ABA position, mediation participants may try to avoid the added expense involved in having separate counsel during mediation, and retain independent counsel at the end of mediation, if at all. This puts the attorney in a difficult position because the attorney is being asked to review an agreement that the attorney had no part in reaching. This problem was addressed by the ABA in Standard III § C. This section requires the mediator to get an agreement from the parties that allows their attorneys to review the factual documentation of mediation upon request.(195) Consequently, the attorney then becomes familiar with the various considerations involved in the parties’ reaching their agreement and the agreement can be reviewed with these considerations in mind.
After going over the mediation material the attorney should discuss the agreement with the client. This can best be done by exploring each point of the agreement in terms of what the client understood the applicable law to be, and the reasons why the client agreed to specific terms in the agreement. This will allow the attorney to determine if the client understood the law and correctly applied it in reaching the decision. If, after having reviewed the agreement with the client, the attorney feels that it is not within the best interest of the client or the children, the attorney should fully explain this opinion to the client. It should then be up to the client whether to return to mediation or litigate.
The enactment of legislation for court-ordered mediation in child custody disputes has the potential for creating good solutions to the difficult problems caused by divorce. Mediation takes the dispute away from the courtroom battle of adversaries who are trying to place blame, and instead, puts the parents in the conference room to discuss the best alternatives for their children’s future. Although not all custody disputes may benefit from or are appropriate for mediation, court-ordered mediation provides the court with humane options to assist the parties in resolving disputes over custody.
A formal hearing is conducted by one or more arbitrators who may be officially sanctioned to reach decisions that will be legally binding on the parties. The hearing is conducted with much of the formality of an adjudication hearing, but more leeway is given to each side during the presentation of their arguments, which include their suggestions as to how the dispute could best be resolved.
Phear, Family Mediation: A Choice of Options, 39 ARB. J. 22, 23 (1984); see also O. COOGLER, supra note 4, at 3.
J. BLADES, supra note 4, at 15.
Mediation of child support amounts and arrangements for payrnent stand a much better chance of voluntary compliance because mediators can help the parents look at the pragmatic aspects of support in order to minimize frustration by both the payer and the payee. Mediation can help to foster a sense of individuality and control as well as the ability to respond cooperatively to changed circumstances. The consensual nature of mediation, as previously discussed, should lessen the incidence of child support noncompliance and nonsupport.
J. FOLBERG & A. TAYLOR, supra note 4, at 172.
[O]n the average, fifteen months after the promulgation of final orders, only 4 percent of the individuals who successfully mediated had filed or received a motion to modify custody or visitation. For unsuccessful mediation individuals, the proportion filing a motion to modify was 11 percent. Roughly eighteen months after receiving final orders, 15 percent of the control group had begun modification proceedings. Among individuals rejecting the offer to mediate, we find that twenty months after final orders, 14 percent had initiated a modification attempt.
Pearson & Thoennes, supra note 5, at 509.In recent years there has been increased criticism of the use of the adversarial method for resolving domestic relations cases. Many view the adversarial approach as resulting in increased hostility and conflict between the parties. The parties often perceive that any final decision as to custody and visitation has been imposed upon them, whether that decision has been achieved through negotiation by attorneys or at trial.
Mediation is frequently offered as an alternative means of resolving family disputes. In mediation, the disputing parties attempt to resolve their differences with the help of a neutral third party and arrive at a mutually acceptable agreement. Since the parties are the actual decision-makers in the mediation process it is anticipated that there will be greater identification with and adherence to any agreement which may be reached.
The following proposal of the Family Law Advisory Committee of the Judicial Council provides for court-ordered mediation of disputes concerning child custody and visitation. The proposal does not provide for court-ordered mediation of financial matters in divorce cases nor does the proposal address the voluntary use of mediation. The Committee was hesitant to involve the court in the ordering of mediation of financial matters due to the increased danger that the mediator would be unable to protect a less financially sophisticated or less dominant spouse from
overreaching. In regard to child custody, the Committee was impressed with the results reportedly achieved in California under mandatory mediation of child custody disputes. West’s Ann. Cal. Civ. Code § 4607. Child custody mediation has apparently resulted in significant decreases in litigation and post-divorce disputes.
The Committee views the proposal for child custody mediation as a logical extension of the court’s authority to order counseling with regard to child custody and visitation under K.S.A. 60-1617.
Proposal of Kansas Judicial Council for Court-Ordered Mediation of Child Custody 1 (attachment to the Minutes of the Kansas Judicial Council meeting Nov. 16. 1984) [hereinafter cited as Proposal].
This court began using mandatory mediation in February 1977. Before that time, on each calendar day for order to show cause hearings, there were five to 15 cases that required adversary hearings to resolve temporary
custody or visitation disputes or to rule on motions for modification of
enforcement of custody or visitation orders. The domestic-relations judge also spent at least two afternoons a week presiding over full-scale custody and visitation hearings. Issues of custody and visitation remained in dispute in many cases, inhibiting the prospects of settling the entire case without a trial.
Along with other procedural
changes, mandatory mediation of custody and visitation disputes was instituted in February 1977---and the results have been dramatic. The San Francisco Superior Court had only five contested custody or visitation hearings or trials during 1980. In one year there were fewer hearings than there had been in a single day under the old system. As of November 1981, there were only three adversary hearings or trials with a dispute over custody or visitation in 1981.
Id. at 41.
Judge Walton raised the issue of whether or not court-ordered mediation should be restricted to issues of custody and visitation. Judge Phillips noted the lack of experience with the whole area of mediation and observed that the proposal was not intended to prohibit parties from voluntarily seeking mediation of financial matters. Mr. Moline suggested the Committee comment express the Committee’s general preference for mediation over litigation and also indicate the difficulties faced in determining qualifications for mediators of financial issues.
Mediation under this section is the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable agreenrent as to issues of child custody and visitation. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parities is to be based on the decisions of the parties and not the decisions of the mediator.
KAN. STAT. ANN. § 23-601 (Supp, 1985).
The drafters’ comments on KAN. STAT. ANN. § 23-601, which was section 1 of the Proposal, are as follows:
Section 1 defines the mediation process to avoid confusion with other forms of dispute resolution such as arbitration and conciliation.
In arbitration, the parties agree to submit their dispute to a neutral arbitrator who is empowered to decide the issues involved. In conciliation, a conciliator will typically offer options for the parties to consider and will actually encourage the parties to adopt an option rather than to remain at an impasse. In mediation, the goal is to achieve a “mutually accepted agreement.” Consequently, this section clarifies that the parties, not the mediator, are the decision-makers in mediation. It is the parties’ responsibility to examine
and decide the issues. While the mediator assists in the identification of the issues and the availability of alternatives, the mediator does not encourage the adoption of any particular option.
Even if the parties cannot resolve all the issues through the mediation process, mediation can reduce the number of litigated issues. Only those issues resolved by the mediation process need to be submitted to the court for determination.
Proposal, supra note 22, § 1 comment, at 2.
Section 2 enables the court to determine when mediation will be ordered and the selection of mediators. This act applies to any custody or visitation dispute, regardless of whether the parties are married. If the parties are or have been married, mediation may be ordered prior to or subsequent to an alteration of the parties’ marital status.
Proposal, supra note 22, § 2 comment, at 2.
See also Oct. 19, 1985 Minutes, at 2 in which the Committee “agreed the section should be amended to cover out-of-wedlock situations.” Id., and Nov. 9, 1984 Minutes, at 1, in which the “comment was enlarged to clarify that mediation could be ordered regardless of whether or not the parties are or have been married.” Id.
When the Proposal was
converted to bill form by the Revisor of Statutes Office and introduced as S. 33 during thc 1985 legislativc session, the bill stated that the court could order mediation “[i]n any action for divorce, separate maintenance or
annulment.” This language would not have allowed the mediation of custody
disputes of parents of children born out of wedlock, which was contrary to the drafters’ intent. This new restrictive language was added by the Revisor of Statutes Office under the misunderstanding that the mediation bill would apply only to cases under Article 16 of Chapter 60 --- Divorce and Maintenance. The legislature was informed of this misunderstanding and, because the legislature agreed with the drafters that mediation should apply to all cases of child custody and visitation, this restrictive language was deleted. See S. 33 (Kan. Leg. Sess. 1985) as amended by the House and Senate Judiciary Committee.
(b) If the court orders mediation under subsection (a), the court shall appoint a mediator, taking into consideration the following:
(1) An agreement by the
parties to have a specific mediator appointed by the court;
(2) the nature and extent of any relationships the mediator
may have with the parties and any personal, financial or other interests the mediator may have which could result in bias or a conflict of interest;
(3) the mediator’s knowledge of (A) the Kansas judicial system and the procedure used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child
development, (D) clinical issues relating to children, (E) the effects of
divorce on children and (F) the psychology of families; and
(4) the mediator’s training and experience in the process and techniques of mediation.
at least two years experience (1) as an attorney handling domestic relations cases, such as divorce, annulment, separate maintenance and child custody or (2) as a counselor or psychotherapist handling marriage and family relationships. In addition, a person under subpart (2) of this subsection shall either be a physician specializing in psychiatry or have a master’s degree in psschology, social work, counseling or other behavioral science substancially related to marriage and family interpersonal relationships.
Proposal, supra note 22, § 2, at 2.
This proposed language was deleted by the House Committee on Judiciary because it was perceived as being too restrictive and not sufficiently relevant to determoning mediator qualifications. Several people testified before the House Committee on Judiciary because they believed that requiring a mediator to have a master’s degree in the behavioral sciences would substancially restrict the use of mediation in smaller communities. Also, there was concern that individuals who had been trained to be mediators by reputable organizations and who had experience in mediation but who did not have master’s degrees were excluded from being court-appointed mediators. Finally, there was concern that attorneys trained to be advocates and behavioral scientists trained to treat psychological problems were not trained to mediate disputes. Neither of these professions specifically deals with the role of the mediator, who neither represents clients nor treats patients, but rather remains neutral and facilitates communications between the parties. Minutes of the House Committee on Judiciary 2 (Mar. 18, 1985, afternoon session)(statements of Rep. Aylward, Penny Geis, Dr. Charles Kunce, Judge White, Miguel L. Acosta). Consequently, the House Committee on Judiciary deleted this more restrictive language. Minutes of the House Committee on Judiciary 2, 3 (Mar. 19, 1985, afternoon session)
[I]t may be improper for an attorney-mediator to mediate for a couple even
if the mediator has represented both of the participants previously in a joint
activity. It is the shift in roles, and in relationship to the process, which
might be inappropriate. For example, if the mediator had previously represented
the participants in the purchase of a business, it is entirely likely that in
the process of representation the attorney advised the clients and negotiated
for them with the seller. In the process, the lawyer protected them; the lawyer
imparted knowledge to them; the lawyer steered them through unfamiliar waters
to a successful purchase. In this capacity, the lawyer must certainly have been
viewed as superior in knowledge and, perhaps, in acumen. The lawyer was a
leader. In mediation, however, it is the participants who should lead; the
mediator should nudge, and then only when such intervention is mandated by
considerations of process fairness. The question presented, therefore, is whether
the participants who have previously retained the mediator in this more
assertive leadership role will be able to assume the major responsibility for
their negotiation in which their previous advocate must now take a subordinate
role in the process.
While the task force members
concluded that this risk did not warrant an absolute prohibition where the
mediator has represented both participants in the past, the members were
concerned that the attorney-mediator consider and discuss the difference in
roles with the participants and mediator that each fully understands his and
her responsibilities in the mediation process, and appreciates the difference
in role between the process of representation, being represented, and
mediation.
ABA TASK FORCE, HANDBOOK 2ND DRAFT at 38-39 (Commentary on Standard III, Sept. 11, 1985)[hereinafter cited as ABA Commentary].
(2) advise the parties that the mediator does not represent eithcr or both of the parties;
(3) define and describe the process of mediation to the parties;
(4) disclose the nature and extent of any relationships with the parties and any personal financial or other interests which could result in bias or a conflict of interest;
(5) advise each of the parties to obtain independent legal advice;
(6) allow only the parties to attend the mediation sessions;
(7) disclose to the parties’ attorneys any factual documentation revealed during the mediation if at the end of the mediation process the disclosure is agreed to by the parties;
(8) ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children; and
(9) inform the parties of the extent to which information obtained from and about the participants through the mediation process is not privileged and may be subject to disclosure.
enumerates those duties of the mediator which the Judicial Council perceives to be essential for the proper functioning of the mediation process. In addition to promoting the parties’ understanding of the process, the costs involved, and the advisability of independent legal advice, the section stresses to both the mediator and the parties that the mediator is not acting in a representative capacity.
Proposal, supra note 22, § 4, at 4.
children below adolescence are not reliable judges of their own best interests and that their attitudes at the time of the divorce crisis may be very much at odds with their usual feelings and inclinations …. The long-lasting anger of children in the nine to twelve-year-old group at the parent whom they held responsible for the divorce; the eagerness of these youngests to be co-opted into the parental battling; their willingness to take sides, often against a parent to whom they had been tenderly attached during the intact marriage; and the intense, compassionate, caretaking relations which led these youngsters to attempt to rescue a distressed parent often to their own detriment have led us to rethink our expectations of these children.
J. WALLERSTEIN & J. KELLY, supra note 13, at 314 (emphasis added).
Subpart (9) of subsection (a) imposes upon the mediator the duty to ensure that the parties take into consideration the best interests of the children. To facilitate the performance of this duty, subsection (b) allows the mediator to meet with the children of any party, including children whose custody or visitation is not in dispute. This provision was added because the mediator may need to interview children whose custody is not in dispute in order to understand the best interest of a