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PA Bulletin, Doc. No. 97-1444




[231 PA. CODE CH. 1940]

Proposed Rules 1940.1--1940.10 Governing Voluntary Mediation in Divorce and Custody Actions; Recommendation 47

[27 Pa.B. 4544]

   The Domestic Relations Procedural Rules Committee proposes the following Rules of Civil Procedure relating to mediation of divorce and custody actions. The Committee solicits comments and suggestions from all interested persons prior to submission of the proposed rules to the Supreme Court.

   Comments relating to the proposed rules must be received no later than November 14, 1997 and must be directed to Sophia P. Paul, Esquire, Counsel, Domestic Relations Procedural Rules Committee, 429 Forbes Avenue, Suite 300, Pittsburgh, Pennsylvania 15219, FAX (412) 565-2336, email:

   These rules are entirely new. The explanatory comments which appear in connection with the proposed rules have been inserted by the Committee for the convenience of those reviewing the proposed rules. They will not constitute part of the rules nor will they be officially adopted or promulgated by the Court.

Annex A




Explanatory Comment


   In recent years, the use of mediation as an alternative to litigation of domestic relations cases has received widespread attention from legislators, judges, attorneys and mental health professionals. As two noted mediation experts observed in relation to child custody and visitation cases: ''[c]ourts are ill-equipped to mandate particular visitation schedules and custodial arrangements, the wisdom of which depend on the situations of the parents and children rather than on legal rules.'' Nancy G. Rogers and Craig A. McEwen, Mediation Law Policy Practice 230 (1989). Many share this frustration with the adversarial system and a growing body of research suggests that mediation may be the more satisfactory and desirable means of conflict resolution in these cases. Mediation offers more flexibility in terms of both the subject matter that may be discussed during mediation and the range of solutions available to the parties. Effective mediation also assists the parties in shaping their own framework for future discussion and resolution of conflicts that arise following separation and divorce.

   In 1996, the Pennsylvania legislature amended the Divorce Code, Act No. 20-1996, § 2, 23 Pa.C.S. §§ 3901--3904, to encourage local courts to establish voluntary mediation programs for divorce and custody cases. Pursuant to § 3904 of the Code, which directs the Supreme Court to develop model rules to implement these programs, the Domestic Relations Committee proposes the following Rules of Civil Procedure. These rules cover domestic violence screening, minimum mediator qualifications, the role of counsel in mediation, confidentiality, and the evaluation and monitoring of mediation programs--all of which are areas in which statewide uniformity of practice and procedure is essential to successful mediation in Pennsylvania. These proposed Rules are intended to apply only to court-connected mediation and not to private mediation. In accordance with 23 Pa.C.S. § 3904, these rules will not affect existing mediation programs established pursuant to local rule.

Rule 1940.1.  Mediation Authorized.

   A court may elect to establish a mediation program for actions in divorce or custody as provided in these Rules.

Rule 1940.2.  Definitions.

   (a)  ''Mediation'' is the confidential process by which a neutral mediator, selected by the parties or appointed by the court, assists the parties in attempting to reach a mutually acceptable agreement on issues arising in an action for divorce or custody. The role of the mediator is to assist the parties in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parties must be based on the voluntary decisions of the parties and not the decision of the mediator. The agreement can resolve all or only some of the disputed issues. Parties and their representatives are required to mediate in good faith, but are not compelled to reach an agreement. While mediation is an alternative means of conflict resolution, it is not a substitute for the benefit of legal advice.

   (b)  ''Orientation session'' is an initial meeting between parties and a mediator to educate the parties on the mediation process so that they can make an informed choice about continued participation in that process. This meeting may be mandated by the court and may be structured as either a group or individual session. The meeting is confidential at the point, if any, that mediation commences during the orientation session.

Explanatory Comment

   These definitions track the legislative distinction between the initial orientation session, which the court may order the parties to attend, and actual mediation of the issues in dispute by the parties, which may be ordered only upon the parties' agreement. See 23 P. S. § 3901(b). The primary purpose of the orientation session is to educate the parties on the availability, the process and the benefits of mediation so that the parties can make an informed decision about whether they wish to proceed further with mediation. If, however, the parties agree to mediation and begin to mediate actual issues at this initial session, they may do so and the session then becomes confidential within the meaning of Rule 1940.7.

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

   (a)  Except as provided in (b), the court may order the parties to attend an orientation session at any time upon motion by a party, stipulation of the parties, or the court's own initiative.

   (b)  The court may not order an orientation session 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.

   Official Note: See also Rule 1940.6 requiring termination of mediation when the mediator finds that the proceeding is ''inappropriate'' for mediation; this rule reflects the mediator's continuing ethical obligation during the mediation to screen for abuse and to terminate the mediation in the event he or she determines that the abuse renders the case unsuitable for mediation.

   (c)  Following the orientation session and with the consent of the parties, the court may order the parties to mediation. The mediation may address any issues agreed to by the parties unless limited by court order.

Explanatory Comment

   Proposed Rule 1940.3 prescribes the circumstances under which a case may be referred to mediation. It prohibits the referral of any case involving past or present domestic abuse because of the substantial imbalance of negotiating power that exists between the parties. The parties themselves, of course, may always agree to mediation. Although each court may devise its own procedures for screening these cases, screening must occur prior to referral of a case to the orientation session. See 23 P. S. § 3904(b). The most widely-used screening mechanism is the Tolman model developed by Dr. Richard Tolman, Ph.D. of the University of Illinois. This model consists of a series of questions asked of the parties which are specifically designed to elicit the information needed to determine whether abuse has occurred and if the case is appropriate for mediation.

Rule 1940.4.  Minimum Qualifications of the Mediator.

   (a)  A mediator must have at least the following qualifications:

   (1)  a bachelor's degree and practical experience in law, psychiatry, psychology, counseling, family therapy or any comparable behavioral or social science field;

   (2)  successful completion of basic training in a divorce and custody mediation program approved by the Academy of Family Mediators;

   (3)  mediation professional liability insurance; and

   (4)  additional mediation training consisting of a minimum of 4 mediated cases totaling 10 hours under the supervision of a mediator who has complied with subsections (1) through (3) above and is approved by the court to supervise other mediators.

   (b)  The mediator shall comply with the ethical standards and continuing educational requirements of the Academy of Family Mediators.

Explanatory Comment

   Mediator qualifications are a key component of a successful mediation program. This proposed Rule sets forth the minimum qualifications that a mediator must have in order to participate in court-connected mediation. Courts may impose additional, more stringent qualifications. In addition to a bachelor's degree and practical experience, a mediator must have basic training in a program approved by the Academy of Family Mediators. Currently, the Academy requires 40 hours minimum for divorce and custody training and 30 hours minimum for custody training only. Each type of training includes at least two hours of domestic violence training. Prior to mediating independently, the mediator must also comediate at least four cases under the supervision of a court-connected mediator. A mediator must also have his or her own professional liability insurance.

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 advice; and

   (6)  that the parties should obtain legal assistance for drafting any agreement or for reviewing any agreement drafted by the other party or the mediator.

   (b)  When 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 party's children or invite other persons to participate in the mediation.

Explanatory Comment

   Proposed Rule 1940.5 sets forth the mediator's responsibilities to the parties. Subdivision (c) permits the participation of third persons with the consent of the parties. Such persons would include attorneys, other family members, mental health professionals, accountants, appraisers or any other person who may be of assistance in resolving the disputed issues.

Rule 1940.6.  Termination of Mediation.

   (a)  Mediation shall terminate upon the earliest of the following circumstances to occur:

   (1)  a 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; or

   (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.

   (b)  If the parties reach a complete or partial agreement, the mediator shall, within 14 days, 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 until and unless it is subsequently incorporated into a writing and signed by the parties.

   (d)  If no agreement is reached during mediation, the mediator shall, within 14 days, report this in writing to the court, without further explanation.

   (e)  The mediator may mediate in 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 divorce or custody action or in any matter which was the subject of the mediation.

Explanatory Comment

   This proposed Rule sets forth the circumstances for termination of mediation. Subdivision (a)(3) reflects the mediator's continuing ethical obligation to screen for domestic violence, substance abuse and any other factors which make the case unsuitable for mediation.

   Subdivision (b) requires the mediator to prepare a memorandum of understanding summarizing the agreements reached by the parties during mediation. This memorandum is primarily for the benefit of the parties and is not binding on either party until and unless the agreement reflected therein is subsequently reduced to a signed, written agreement evidencing the parties intention to be bound by that agreement. This is accomplished either by the parties' attorneys or, if not represented, the parties themselves, but in no event is the mediator responsible for drafting the parties' agreement. Court approval of the final agreement is not necessary for the purpose of enforcing it to the same extent as a court order. See 23 Pa.C.S. § 3105.

Rule 1940.7.  Confidentiality.

   (a)  Except as provided in (b) and (c),

   (1)  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

   (2)  no party, mediator or other person who participates in the mediation may be called as a witness or otherwise compelled to reveal any matter disclosed in the mediation.

   (b)  A fraudulent communication is not privileged in an action to enforce or set aside a mediation agreement reached as a result of that fraudulent communication.

   (c)  Unless its terms provide otherwise, the final agreement signed by the parties is not privileged.

Explanatory Comment

   The parties' expectations that matters disclosed in mediation will remain confidential are essential to encouraging candid and forthright discussion during the mediation process. Thus, the proposed Rule provides that all mediation communications and documents, as those terms are defined in 42 P. S. § 5949 of the Judicial Code, are privileged. Nothing in this proposed Rule is intended to modify or restrict the provisions of the Judicial Code which define, describe and limit the types of communications and documents which are privileged. Note that under the Judicial Code all but fraudulent communications are privileged whereas only documents which are prepared for the purpose of, in the course of, or pursuant to the mediation are privileged. 42 Pa.C.S. § 5949(b)(4).

   The proposed rule does not explicitly permit the parties to waive confidentiality, even if the parties were to agree to execute a written waiver to this effect. The committee invites comments from the bench, bar and other interested persons on whether the parties should be permitted to waive confidentiality and, if so, the circumstances under which it may appropriately be waived.

Rule 1940.8.  Mediator Compensation.

   Mediators shall be compensated for their services at a rate to be established by each court.

Explanatory Comment

   Mediator compensation is necessary to establish and maintain a quality mediation program. However, in the absence of a statewide office for alternative dispute resolution, each court must develop and secure its own funds for the mediation program. Since the availability of funds will vary significantly from court to court, each court may establish its own rate and method of compensation at this time. In doing so, however, the fees should be structured so that all parties are assured equal access to mediation services.

Rule 1940.9.  Sanctions.

   On its own motion or a party's motion, 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 attorney fees, including those incurred in the filing and presentation of the motion for sanctions.

Rule 1940.10.  Evaluation of Mediation Program.

   (a)  Each court shall require mediators and court personnel to evaluate the mediation program at least semi-annually.

   (b)  The court shall require uniform statistical and evaluation report forms to be completed by the mediator after each mediation session.

Explanatory Comment

   This proposed rule contemplates peer review evaluation at the local level for the benefit of the courts and mediators to discuss and evaluate the effectiveness of their particular programs. Peer review is also essential to mediator accountability.

   Pursuant to 23 Pa.C.S. § 3904, the Supreme Court is also required to monitor and evaluate the overall effectiveness of mediation programs statewide. At present, however, there is no central office for alternative dispute resolution that can provide the expertise, resources and statistical information necessary for the development of uniform statewide reporting requirements. Reporting is necessary to assess the overall effectiveness of mediation as an alternative to litigation, and it will eventually be required. The current lack of reporting requirements, however, should not be cause for delay in the establishment of mediation programs or the implementation of statewide mediation rules.


[Pa.B. Doc. No. 97-1444. Filed for public inspection September 5, 1997, 9:00 a.m.]

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