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PA Bulletin, Doc. No. 99-1913

THE COURTS

MONTGOMERY COUNTY

Custody Mediation Orientation Program

[29 Pa.B. 5832]

Order

   And Now, this 18th day of October, 1999, the Court approves and adopts the following Montgomery County Local Rules of Civil Procedure Governing Custody Mediation Orientation Program. These Rules shall become effective thirty (30) days from the date of publication in the Pennsylvania Bulletin.

   The Court Administrator is directed to publish this Order once in the Montgomery County Law Reporter and in the Legal Intelligencer. In conformity with Pa.R.C.P. 239, seven (7) certified copies of the within Order shall be filed by the Court Administrator with the Administrative Office of Pennsylvania Courts. Two (2) certified copies shall be distributed to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin. One (1) certified copy shall be filed with the Domestic Relations Committee. One (1) copy shall be filed with the Prothonotary, one (1) copy with the Clerk of Courts, (1) copy with the Court Administrator of Montgomery County, one (1) copy with the Law Library of Montgomery County and one (1) copy with each Judge of this Court.

By the Court

JOSEPH A. SMYTH,   
President Judge

Rule *1940.3.  Order for Orientation Session and Mediation. Selection of Mediator.

   (a)  Except as provided in (c) below, in an action for custody, partial custody or visitation where an agreement is not reached and reduced to writing by the conclusion of the Custody Conciliation Conference, the parties shall attend a two-hour custody mediation orientation session.

   (b)  An orientation session is an initial meeting between parties, and a mediator pursuant to Local Rule 1940.4 below, to educate the parties concerning the mediation process so that an informed choice can be made about continued participation in that process. The mediation is confidential at the point, if any, that mediation commences during, or after, the initial orientation session.

   (c)  An orientation session shall not be mandated if a party or a party's child is or has been the subject of abuse either during the pendency of the action or within 24 months preceding the filing of the action.

Rule *1940.4.  Minimum Qualifications to be a Mediator Under Local Rule 1940.3.

   (a)  A mediator must meet, at a minimum, the following requirements:

   (1)  hold a post-graduate level degree in law, or a mental health field such as psychiatry, psychology, counseling or family therapy;

   (2)  have successfully completed basic training in a divorce and custody mediation program approved by the Academy of Family Mediators or equivalent program, such as a program approved by the Academy of Matrimonial Lawyers, or its substantial equivalent;

   (3)  certify that Mediator Professional Liability Insurance is maintained;

   (4)  participation in a program offered by the Family Law Section of the Montgomery Bar Association involving substantive law training, training concerning our local child custody procedures, and training concerning the local custody mediation orientation program, including reporting obligations;

   (5)  continued compliance with the ethical standards and any continuing educational requirements of the Academy of Family Mediators, the Academy of Matrimonial Lawyers or their substantial equivalents.

   (b)  The Court shall have the authority, upon cause shown, to decertify any Montgomery County custody mediator who has not complied with the foregoing local rule.

Rule *1940.5.  Duties of the Mediator.

   (a)  At the orientation session, the mediator must inform the parties in writing of the following:

   (1)  the costs of mediation;

   (2)  the process of mediation;

   (3)  that the mediator does not represent either or both of the parties;

   (4)  the nature and extent of any relationships with the parties and any personal, financial or other interests that could result in a bias or conflict of interest;

   (5)  that mediation is not a substitute for the benefit of independent legal advise; and

   (6)  that the parties should obtain legal assistance for drafting or reviewing any agreement.

   (b)  When proceeding from the orientation to mediating a custody dispute, the mediator shall ensure that the parties consider fully the best interests of the children.

   (c)  With the consent of the parties, the mediator may meet with the parties' children or invite other persons to participate in the mediation.

Rule *1940.6.  Termination of Mediation.

   (a)  Mediation, if undertaken after the initial orientation session, shall terminate upon the earliest of the following:

   (1)  the complete agreement of the parties;

   (2)  a partial agreement of the parties and a determination by the mediator that further mediation will not resolve the remaining issues;

   (3)  a determination by the mediator that the parties are unable to reach an agreement through mediation or that the proceeding is inappropriate for mediation; or

   (4)  a refusal of one of the parties to continue with the mediation.

   (b)  If the parties reach a complete or partial agreement, the mediator shall promptly prepare and transmit to the parties and their attorneys, if any, a non binding Memorandum of Understanding setting forth the terms of the parties' agreement. In no event shall any agreement, whether reflected in the Memorandum of Understanding or otherwise, be binding on the parties unless and until it is subsequently incorporated into a writing signed by the parties.

   (c)  The mediator may mediate subsequent disputes between the parties, but shall not act as attorney, counselor, or psychotherapist for any party either during or after the mediation of a custody action, or in any matter which was the subject of mediation.

   (d)  The mediator is prohibited from asking the parties to sign any Memorandum of Understanding or agreement. No mediator drafted Memorandum of Understanding or agreement shall be submitted to the Court in any proceeding.

Rule *1940.7.  Confidentiality of Mediation Subsequent to Initial Orientation Session.

   (a)  All mediation communications and mediation documents, as those terms are defined in 42 P. S. § 5949 of the Judicial Code, are privileged, not subject to discovery and inadmissible as evidence in any proceeding; and

   (b)  No party, mediator or other person who participates, may be called as a witness, or otherwise compelled to reveal any matter disclosed in mediation undertaken, if any, during or subsequent to the initial orientation session.

Rule *1940.8.  Mediator Compensation.

   Mediators shall be compensated for their orientation services at a rate to be established by the Court. Unless otherwise ordered, the rate established for the custody mediation orientation session shall be divided between the parties. The costs of the orientation session may be waived by the Court for any party qualifying to proceed in forma pauperis.

Rule *1940.9.  Sanctions.

   On its own motion or the motion of a party, the Court may impose sanctions against any party or attorney who fails to comply or causes a party not to comply with these mediation rules. Sanctions may include an award of mediation costs and attorneys fees, including those incurred in the filing and presentation of the motion for sanctions, as well as a finding of Contempt. A hearing on a Custody Complaint or Petition shall not be delayed, however, by a party's refusal or failure in attending the mediation orientation sessions.

Rule *1940.10.  Evaluation of Custody Mediation Orientation Program.

   (a)  The Court shall require mediators and Court personnel to evaluate the mediation orientation program at least semi-annually.

   (b)  The President Judge shall appoint an Advisory Panel to the program to oversee and implement the program consistent with local Court rules, including, but not limited to, implementing and monitoring the program consistent with Paragraph (a) above.

Rule *1940.11.  Certificate of Compliance.

   A certificate of compliance shall be filed by the mediator with the Prothonotary's Office, confirming compliance. Such certificate shall reflect only that such party or parties have complied with these local rules, but shall in no event detail that such compliance was comprised of attendance or disqualification, so as to ensure that confidentiality is not violated consistent with Local Rule 1940.7.

Rule *1940.12.  Available List of Mediators

   The Court shall maintain and make available to all parties and counsel in the Prothonotary's Office and the Custody Conciliator's Office a list of custody mediators who have satisfied the requirements described more fully in Local Rule 1940.4. Such list shall include, at a minimum, the names, addresses and the schedule of fees for mediation services to be provided subsequent to the initial custody mediation orientation session.

[Pa.B. Doc. No. 99-1913. Filed for public inspection November 12, 1999, 9:00 a.m.]


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