The Pennsylvania Divorce Code was previously revised to encourage local Family Courts to establish voluntary mediation in both divorce and child custody cases.  The Pennsylvania Supreme Court promulgated Rule No. 234 which established Pennsylvania Rules of Civil Procedure 1940.1 through 1940.8 governing child custody mediation orientation programs.  Any Pennsylvania county that had previously established local rules governing custody mediation orientation programs were "grand-fathered" and could be maintained "as is" by the respective county.  Montgomery County, for example, was one Pennsylvania county whose mediation program had been "grand-fathered" per Pennsylvania law, and which was allowed to remain "as is."  In fact however, Montgomery County's local rules governing its mediation program were even more stringent than the Pennsylvania State Rules when its mediation program was "grand-fathered," and this remains the case to this day.

The revised Pennsylvania Rules of Civil Procedure are not ordinarily applicable to the private child custody mediation sector, but they are applicable when local Pennsylvania Family Courts refer child custody mediation cases to a private mediator.  Pennsylvania Rules established procedures for referring cases to mediation wherein the applicable Family Court may order a mandatory mediation orientation unless there is a protection from abuse action either pending, or withing the last 24 months.  Family Courts may also refer parties to child custody mediation. 

Ultimately, mediation is, by its nature, a voluntary process, and parties in a child custody action in Pennsylvania cannot be forced to resolve their case or the child custody issues through mediation.  Parties to a child custody case can, however, be required to attend a mediation orientation program, and this will depend on which Pennsylvania county the case is being heard.  Parties can also be encouraged by Family Courts to make a good faith effort towards resolving the case and the child custody issues through mediation.

What qualifications are required for court-referred Pennsylvania child custody mediators?

Pennsylvania Rules established minimal qualifications for mediators which include that the mediator have a Bachelor's Degree and practical experience in law, psychiatry, psychology, counseling, family therapy, or a comparable behavioral or social science.  The mediator must have completed basic training that has been approved by the Academy of Family Mediators, the American Bar Association, the American Academy of Matrimonial Lawyers, or the Administrative Office of the Pennsylvania Court.  The mediator is required to carry profession mediation liability insurance.

The child custody mediator must obtain additional training by mediating four cases totaling ten hours under the supervision of a mediator that has been approved by the applicable Family Court to supervise such training.  Child custody mediators must comply with the ethical standards of both the mediation profession and the mediator's profession (if also an attorney for example).  Thus, an attorney mediator who mediates child custody cases in Pennsylvania is held to mediation ethical standards and also the Rules of Professional Conduct for attorneys; a mental health professional who mediates child custody in Pennsylvania is held to their professional standards and also the ethical standards of the mediation profession; and so forth.

There are numerous mediation ethical standards promulgated, among them being the American Bar Association Standards of Practice, the Family Law Section of the American Bar Association Standards of Practice for Lawyer Mediators and Family Disputes, the Academy of Family Mediators Standards of Practice, and numerous other promulgated standards.  The difficulty lies in the fact that there is no governing body for the enforcement of mediator ethical standards as there are governing bodies for the enforcement of ethical standards in other professions.

What are the duties in a court-referred Pennsylvania child custody mediation program?

The duties of a mediator in a court-referred mediation program are outlined in the Pennsylvania Rules of Civil Procedure.  They include a continual ethical obligation to screen for domestic abuse, SPOUSAL abuse, and domestic violence, the requirement to thoroughly apprise the mediating parties of the costs of mediation and the process of mediation.  The mediating parties are often the child or children's parents, but at times can be grandparents seeking custody, or third parties under the legal doctrine of in loco parentis.

The child custody mediator must also ensure his or her neutrality and make it clear to the mediating parties that the mediator is not representing, nor can they represent either party to the mediation, thus encouraging mediating parties to have independent legal counsel.  Under the Pennsylvania Rules of Civil Procedure, there is no ability for a mediator to draft a binding agreement.  In child custody mediation in Pennsylvania, the mediator must ensure the best interest of the child or children.  With the parties' consent, the mediator may bring the child or children into the mediation or invite other third parties to participate as appropriate.

In addition, the Pennsylvania Rules of Civil Procedure outline conditions under which the mediator may terminate and/or must terminate mediation.  It must be understood by the parties that, because child custody mediation is a voluntary process, they may always terminate mediation at any time.

Can what happens in child custody mediation in Pennsylvania be used in court?

The confidentiality of the mediation process is protected by statute in Pennsylvania.  All communications and documents that arise in mediation are privileged and therefore inadmissible except: (a) a settlement agreement that may be introduced into evidence to enforce the agreement unless said agreement states that it is unenforceable or not intended to be legally binding; and (b) communications and documents arising in mediation are admissible to the extent that the communication is relevant in a criminal matter.  For example, if any of the following took place during a child custody mediation in Pennsylvania, such actions or conduct can be used against a person in a criminal prosecution: (a) a threat of bodily injury on a person; (b) a threat that damage may be inflicted on real or personal property that would constitute a felony; and (c) conduct during mediation that causes direct bodily injury.

There is no privilege for fraudulent statements made in mediation that are relevant evidence utilized to set aside or enforce a mediated agreement that was reached as a result of that fraudulent communication.  In addition, any document which otherwise exists or existed independent of the child custody mediation is not privileged and is discoverable and admissible.

The Confidential Mediation Statute is not the only Pennsylvania law that speaks to what is privileged and what is not during child custody mediation in Pennsylvania.  Rule 408 of the Pennsylvania Rules of Evidence is also a major consideration.  Rule 408 ensures that evidence of conduct or statements made in compromised negotiations are not admissible. However, Rule 408 of the Pennsylvania Rules of Evidence does not required the exclusion of an admission of fact or any evidence that is otherwise discoverable just because it is presented in the course of compromise or negotiations.  Unlike the Federal Rule of Evidence, the Pennsylvania Rule supports existing Pennsylvania law that distinct admissions of fact made during settlement negotiations are admissible.

What is an attorney's role in Pennsylvania child custody mediation?

Pennsylvania child custody attorneys must be very diligent in helping their clients choose qualified mediators.  One consideration is that there are no formal requirements or qualifications for mediators who work in the private sector.  In addition, child custody attorneys must be mindful of the confidentiality attendant to the mediation process.  The parties to a mediation may elect to waive the privilege of confidentiality as to their respective attorneys as long as both parties agree to do so, and attorneys in representing mediating parties should highly recommend that the parties do so.  That waiver will allow the child custody mediator to share all information with the parties' respective child custody attorneys.  Doing so will enable the mediating parties' attorneys to diligently monitor the mediator and also be available to the mediating parties throughout the process for the purpose of advising parties as to their legal rights, the legal ramifications of their agreements, and enabling parties to participate in mediation with their adequate knowledge to make informed decisions.

When representing parties who are involved in the mediation process, it is critical that parties' attorneys be available every step of the process.  Pennsylvania custody attorneys should not omit client participation in advance of mediation.  Parties' attorneys should educate their clients as to the mediation process because it helps to ensure the success of the process.  A related factor is that mediating parties have available to them prospective solutions that may be outside the scope of the law.  If the parties' attorneys are aware of the reasoning and value considerations behind concessions that may be made by consenting parties in the mediation process that may appear to be less than what the attorneys conceive could be achieved in child custody litigation, the attorneys will be unlikely to disturb the agreement of the parties.  It must be understood that attorneys who believe that their duty of due diligence is decreased when parties mediate do not understand the potential value of good faith mediation in helping successfully resolve issues in child custody cases.

Can my attorney help me decide if mediation is right for my child custody case?

The first duty of a Pennsylvania child custody attorney is to ensure that the custody case and the parties would benefit from the mediation process, and also that the custody case is appropriate for mediation.  As part of the decision-making process, a party's attorney should do a cost benefit analysis with the client.  The best alternative to a potential negotiated agreement achieved through mediation should be weighed against the potential negotiated agreement.  A party's attorney should be instrumental in selecting an appropriate mediator, and must also screen for abuse, past or present, between the parties.

An attorney has many responsibilities when representing a party to a mediation, and among other considerations, the following are crucial to a successful mediation:

• Determining the party's ability to maintain control;
• Balancing the scales of power by empowering the dependent party, whether parent, spouse, or other, with the knowledge need for meaningful discourse;
• Preparing the party to the mediation for anticipated questions the mediator or the other party may ask. 

To be most effective, an attorney must develop reasonable expectations with the client and weigh the benefits of resolution through mediation versus proceeding with a trial to decide child custody and any child custody issues; should help their client develop creative solutions to the child custody issues facing the parties, and also the child or children; and should encourage their client to allow enough time for the mediation process to be effective.

Lastly, an attorney should:

• Educate their client as to the client's rights under the Pennsylvania Domestic Relations Code;
• Work with their client as to their personality strengths or weaknesses which may affect their ability to negotiate first hand with the other party;
• Discuss the various options that their client may be considering in their mediated settlement discussions;
• Explore the skills and tools their client's will need for mediation to be successful; including, perseverance to see the mediation through; the ability to listen to and evaluate the other party's positions and needs; the ability to empathize and accept responsibility; and the desire for an amicable and reasonable settlement.

How can I protect my interests in a child custody mediation?

Mediation in Pennsylvania child custody cases can be an effective way to address and successfully resolve issues between parties, but certain precautions must be taken by a party to a mediation, and also the party's attorney.  Although mediation is intended to be a non-adversarial setting to allow for effective negotiation between the parties, a party should make sure that their interests are protected during the mediation process, and can do so through the advice and support of an experienced Pennsylvania child custody attorney, and in particular, a Pennsylvania attorney who has experience in child custody mediation. Contact attorney Joseph D. Lento today to learn how he can help.