PRACTICE STANDARDS FOR SOCIAL WORK MEDIATION

http://www.familymediationcouncil.com/swstandards. htm [15-12-2010]

Contents • • • •

Introduction Definition of Mediation Principles Guiding Practice Standards for Social Work Mediators Standards for the Practice of Mediation by Social Workers o Standard 1. Social work mediators shall function within the ethics and stated standards and accountability procedures of the social work profession. o Standard 2. Social work mediators should remain impartial and neutral toward all parties and issues in a dispute. o Standard 3. The social work mediator shall not reveal to outside parties any information received during the mediation process. o Standard 4. Social work mediators shall assess each conflict and shall proceed only in those circumstances in which mediation is an appropriate procedure. o Standard 5. The social work mediator shall seek at all times to promote cooperation, to prevent the use of coercive tactics, to foster good-faith bargaining efforts, and to ensure that all agreements are arrived at on a voluntary and informed basis. o Standard 6. The social work mediator shall recommend termination of the process when it appears that it is no longer in the interest of the parties to continue it. o Standard 7. The social work mediator is responsible for helping the parties arrive at a clearly stated, mutually understood, and mutually acceptable agreement. o Standard 8. The social work mediator shall develop an unbiased written agreement that specifies the issues resolved during the course of mediation. o Standard 9. Social work mediators shall have training in both the procedural and substantive aspects of mediation. o Standard 10. A social work mediator shall have a clearly defined and equitable fee structure. o Standard 11. The mediator shall not use any information obtained during the mediation process for personal benefit or for the benefit of any group or organization with which the mediator is associated. o Standard 12. Social work mediators shall be prepared to work collaboratively as appropriate with other professionals and in conformance to the philosophy of social work and mediation.

1

Introduction Social workers sit at the center of many social conflicts. In their role as facilitator of person-to-person, person-to-group, person-to-institution, and institution-to-institution interactions, social workers face the issue of conflict resolution as a normal part of their professional activities. The role of social worker in these conflicts has been variously described as advocate, negotiator, and mediator.

Increasingly, social workers and other professionals have chosen or been asked to play the formal role of mediator, that is, a neutral third party who helps people or groups in conflict arrive at mutually acceptable solutions. Social workers mediate issues such as divorce and postdivorce disputes, parent-child conflicts, child welfare issues, and disagreements concerning care of the elderly. In addition, they mediate neighborhood disputes, community conflicts, and personnel issues. As the use of mediators in a variety of circumstances has increased, a concomitant development has taken place regarding the conceptual framework and skills set within which mediators function.

Mediation increasingly is viewed as a powerful intervention tool distinct from albeit informed by-other approaches to client services. These developments have led the National Association of Social Workers (NASW) to develop and adopt a set of standards that are intended to guide the practice of social workers who function as neutral third parties. These standards were developed to complement the NASW Code of Ethics and to be consistent with the standards of major mediation organizations.

Considered desirable for all social work mediators, these standards are designed to do the following: • • •

promote the practice of social work mediation provide direction and professional support to social work mediators inform consumers, employers, and referral sources by providing them with a set of expectations for social worker mediators.

Definition of Mediation Mediation is an approach to conflict resolution in which a mutually acceptable, impartial third party helps the participants negotiate a consensual and informed settlement. In mediation, decision making rests with the parties. Reducing the obstacles to communication, maximizing the exploration of alternatives, and addressing the needs of those who are involved or affected by the issues under discussion are among the mediator’s responsibilities.1 I The mediator is responsible to the system of people or groups involved in a decisionmaking process. The mediator must provide this system with the structure and tools to make mutually acceptable decisions under difficult circumstances. In this sense, the mediator’s role is to empower the system so that it does not have to resort to outside parties, such as the courts or arbitrators, to make the decision.

Principles Guiding Practice Standards for Social Work Mediators 2

The following principles govern the practice standards for social work mediators: • • • •

•

•

Mediation is a method of social work practice.2 The mediator is responsible to the system of parties involved in the dispute or decision-making process, rather than to any single party or client.

These standards are to be interpreted within the ethical base and values explicated in the NASW Code of Ethics.

Mediators should be familiar with and trained in the theory and practice of mediation. In addition to social work education, the social work mediator needs specific training and practice experience in mediation and conflict resolution.

Social work mediators should be accountable, both to the client and to colleagues, for the professional and ethical application of their skills and service delivery.

Because mediation is a growing and developing field, these standards should be reviewed regularly to incorporate new developments in the theory and practice of mediation.

Standards for the Practice of Mediation by Social Workers Standard 1: Social work mediators shall function within the ethics and stated standards and accountability procedures of the social work profession.

Interpretation All social workers have a fourfold responsibility: to clients, to the profession, to self, and to society. Social work mediators should identify themselves as members of the social work profession. NASW members shall be familiar with and adhere to the NASW Code of Ethics and shall cooperate fully and in a timely fashion with the adjudication procedures of the committee of inquiry, peer review, and appropriate state regulatory boards. They should be aware of and adhere to relevant stated professional standards for social work practices.

Standard 2: Social work mediators should remain impartial and neutral toward all parties and issues in a dispute.

Interpretation Social work mediators should enter into a dispute as a mediator only when they can maintain a stance of impartiality and neutrality. They should inform all involved parties of any development or circumstances that might contribute to the actuality or appearance of bias or favoritism, or that might interfere in any way with their impartial and neutral role. Impartiality refers to the mediator’s attitudes toward the issue and people involved. An impartial mediator acts without bias in word and action and is committed to helping all parties rather than to advocating for any single person.

Neutrality relates to the mediator’s relationship to the parties and the issues involved. A mediator should have no relationship with parties or vested interests in the substantive outcome that might interfere or appear to interfere with the ability to function in a fair, 3

unbiased, and impartial manner. Any such relationship must be disclosed to the parties before the start of mediation or as soon as knowledge of such a relationship occurs. If any of the parties or the mediator feels that such a relationship has a potential to bias the mediator’s performance, the mediator should disqualify himself or herself from acting as a neutral third party.

It is important that the mediator continue to maintain a neutral stance after the mediation is completed to avoid casting doubt on the legitimacy of the mediation that occurred and to ensure continued availability for future interventions as appropriate.

Standard 3: The social work mediator shall not reveal to outside parties any information received during the mediation process.

Interpretation As with the success of other social work methods, the success of mediation depends largely on the confidentiality of the process. The mediator should not reveal to other parties any information received during private sessions or caucuses without the express permission of the parties from whom the mediator received the information.

Clients and mediators must be aware that there are legal and ethical circumstances in which confidentiality cannot be maintained. These circumstances include but are not limited to the legally mandated requirement to report suspicion of child abuse or a suspicion of bodily harm or violence to another person. Mediators should be aware of any legal or statutory limits placed on mediation in the jurisdiction in which they practice. Exceptions to confidentiality and any other exceptions that may arise because of the circumstances, legal framework, or institutional structure within which mediation occurs should be disclosed to the parties before or during their initial meeting with the mediator.

The mediator should inform the parties of the possibility that the mediator might be compelled to testify in court or in other ways reveal information gathered during the mediation process. Confidentiality applies to the mediator and the mediator’s records.

Standard 4: Social work mediators shall assess each conflict and shall proceed only in those circumstances in which mediation is an appropriate procedure.

Interpretation Mediation is not appropriate for all types of conflict. Mediators should assess whether each party has the capacity to engage in mediation and has the support necessary to be an effective participant. They should inform parties about alternative dispute resolution processes that are available to them and discuss the appropriateness of mediation at the beginning of the intervention.

If mediation is to be effective, parties at a minimum must have the ability to negotiate for themselves, to assess the information relevant to the case, and to understand the implications of the various agreements being considered. Furthermore, the mediation process should address a potential imbalance of power that might exist between the parties. In those situations in which legal advice or other expert consultation is 4

necessary or would serve parties better, the mediator should make the appropriate referrals. The role of mediator should not be confused with that of an attorney.

Psychotherapist or evaluator, even if the mediator also has expertise in one or more of those areas.

Standard 5: The social work mediator shall seek at all times to promote cooperation, to prevent the use of coercive tactics, to foster good-faith bargaining efforts, and to ensure that all agreements are arrived at on a voluntary and informed basis.

Interpretation Good-faith negotiation means that the parties are making an honest (even if uncertain) attempt to arrive at an agreement, that they are not using the process for destructive purposes, that they are sharing relevant information in a frank and truthful manner, and that they are not using coercive or dishonest bargaining tactics. Although it is not always possible to ensure that all parties are negotiating in good faith, it is the mediator’s responsibility to promote and expect good-faith behavior. The mediator should not allow coercive or bad-faith tactics to continue during the mediation process.

If the mediator is aware that these tactics are being used and cannot stop their use, the mediation process should be discontinued.

Standard 6: The social work mediator shall recommend termination of the process when it appears that it is no longer in the interest of the parties to continue it.

Interpretation Mediation should not be used to prolong a dispute unnecessarily or to prevent the use of a more appropriate conflict resolution procedure. Occasionally, it is in the interest of one party to prevent an agreement from being reached. At other times parties are simply unable to agree, and they reach an impasse. The mediator should not continue with the mediation if these situations occur. The mediator should, however, exert every effort to promote the successful conclusion of mediation and should not abandon the effort prematurely.

Standard 7: The social work mediator is responsible for helping the parties arrive at a clearly stated, mutually understood, and mutually acceptable agreement.

Interpretation It is the mediator’s responsibility to conduct the mediation process, not to promote any particular substantive outcome. Frequently, the solution that the mediator believes best meets the interests of the parties is not the one that the parties select. The mediator’s role is to conduct a fair process, not to promote a particular outcome. The mediator should try to ensure that the agreement, whether partial or full, reflects a fair and goodfaith negotiation effort. If the mediator feels that the agreement is illegal, grossly unfair to a participating or unrepresented party, the result of bad-faith bargaining, or based on inaccurate information, the mediator has the obligation to make this known to the parties involved and to try to correct the problem. When parties agree to an unconscionable outcome, an illegal agreement, or one based on dishonesty or 5

misrepresentation, mediators should disassociate themselves from the agreement in accordance with standards of confidentiality.

Standard 8: The social work mediator shall develop an unbiased written agreement that specifies the issues resolved during the course of mediation.

Interpretation The written agreements should, to the extent possible, be in the language of the parties themselves, and should be clearly understood by them. The actual determination of whether an agreement is legally binding constitutes a legal judgment. However, it is important for parties to know that any agreement may be legally binding and should not be finalized without the appropriate legal advice.

Standard 9: Social work mediators shall have training in both the procedural and substantive aspects of mediation.

Interpretation Social workers should mediate disputes only in those areas for which they are qualified by training or experience. If they have no substantive knowledge in a particular area, they should obtain it, work with a qualified co-mediator, have appropriate consultation, or refer the dispute elsewhere. Mediators should obtain formal training in the mediation process, and beginning mediators should work under a qualified supervisor. Formal training is currently available through professional seminars and workshops and university-based programs. The standards for training obtained by social work mediators should be in keeping with those currently accepted by the leading professional organizations of mediators in the area in which the social worker is functioning. Social work mediators should upgrade their skills and knowledge in the field of conflict resolution through continuing education programs and participation in relevant professional conferences and seminars.

Occasionally, mediators will be asked to mediate a dispute in which they do not have substantive expertise. If a mediator skilled in that specialty is not available, the mediator either should work with a co-mediator or consultant who is familiar with the substantive area or take the time to become familiar enough with the area to be able to help parties explore their interests and options in an informed manner.

Standard 10: A social work mediator shall have a clearly defined and equitable fee structure.

Interpretation The fee structure should be presented to all parties at the outset of the mediation. Fees should reflect standards of impartiality and neutrality. All compensation mediators receive for their services should be known to all involved parties, and mediators should accept no side payments or fees based on the outcome of the mediation process.

If at all possible, either a neutral party or agency should cover the cost of mediation or the cost should be split equitably (although not necessarily equally) among the parties.

6

If one party is supposed to pay the entire fee, this should be known and agreed to by all parties at the outset. Under no circumstances should the fee structure give the mediator a vested interest in a particular outcome. Fees should therefore not be contingent on the nature of the agreement or even on the achievement of an agreement.

Standard 11: The mediator shall not use any information obtained during the mediation process for personal benefit or for the benefit of any group or organization with which the mediator is associated.

Interpretation Mediators are often given access to information that could be used for personal or organizational benefit. It is inappropriate for the mediator to compromise the mediation process by using this information outside the mediation process.

Standard 12: Social work mediators shall be prepared to work collaboratively as appropriate with other professionals and in conformance to the philosophy of social work and mediation.

Interpretation The mediator should not separately mediate any dispute that already is being mediated.

If another mediator has been involved in the case, the mediator should ascertain that this relationship has been terminated before agreeing to become involved.

In cases in which a co-mediation procedure is being used, all the mediators involved should keep each other informed about activities and developments relevant to the case, and the clients should know at the outset that this information sharing will occur. Comediators should handle any disagreements they may have in a collaborative manner.

Mediators should respect the involvement of legal, mental health, social services, and other professionals involved in the dispute or with the parties and should work with them in a cooperative and respectful manner.

Notes 1

Adapted from the Model Standards of Practice for Family and Divorce Mediators.

(Madison, Wisconsin: Association of Family Conciliation Courts, 1984).Adapted from the Model Standards of Practice for Family and Divorce Mediators. (Madison, Wisconsin: Association of Family Conciliation Courts, 1984).

2

Method is used to identify specific types of intervention. See Robert L. Barker, The Social Work Dictionary, 2nd ed. (Silver Spring, MD: NASW Press, 1991), p. 144, the term "methods in social work."

7