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PA Bulletin, Doc. No. 99-1910




[231 PA. CODE CH. 1940]

Promulgation of Rules Relating to Voluntary Mediation in Custody Actions; No. 324; Civil Procedural Rules Doc. No. 5

[29 Pa.B. 5820]


Per Curiam:

   And Now, this 28th day of October, 1999, new Rules 1940.1, 1940.2, 1940.3, 1940.4, 1940.5, 1940.6, 1940.7, and 1940.8 of the Pennsylvania Rules of Civil Procedure are promulgated as follows.

   This order shall be processed in accordance with Rule of Judicial Administration 103(b) and shall be effective immediately.


Explanatory Comment


   In recent years, the use of mediation as a means for alternative dispute resolution of custody and visitation cases has received widespread attention from legislators, judges, attorneys and mental health professionals. As two noted mediation experts observed:  ''[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 & 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 both in terms of 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, codified at 23 Pa.C.S. §§ 3901--3904, to encourage local courts to establish voluntary mediation programs for divorce and custody cases. The following Rules of Civil Procedure are intended to govern custody cases only. They set forth the procedures for referring cases to mediation, minimum mediator qualifications, the duties of the mediator, the procedures for terminating mediation as well as sanctions for noncompliance with these rules. These are all areas in which statewide uniformity of practice and procedure is essential to successful mediation in Pennsylvania. These rules are flexibly designed to encourage the establishment of mediation programs.

   Pursuant to 23 Pa.C.S. § 3903, the Supreme Court is directed to monitor and evaluate the overall effectiveness of mediation programs statewide. At present, the Domestic Relations Procedural Rules Committee is working on the development of uniform statewide reporting requirements and evaluation forms. 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 a cause for delay in the establishment of mediation programs or the implementation of statewide mediation rules.

   These rules do not address confidentiality and privilege in the context of mediation. Those issues are governed by 42 Pa.C.S. § 5949, and the Committee concluded that to address them further in the rules would confuse rather than clarify any legal issues arising from the statutory language.

Annex A





1940.1.Applicability of Rules to Mediation.
1940.3.Order for Orientation Session and Mediation. Selection of Mediator.
1940.4.Minimum Qualifications of the Mediator.
1940.5.Duties of the Mediator.
1940.6.Termination of Mediation.
1940.7.Mediator Compensation.

Rule 1940.1.  Applicability of Rules to Mediation.

   The rules in this chapter shall apply to all court-established custody mediation programs and to any court-ordered mediation of individual custody cases.

Explanatory Comment--1999

   23 Pa.C.S. § 3901 authorizes a court to establish a mediation program for both divorce and custody cases. At the present time, these rules apply only to court-connected mediation of custody cases because most, if not all, court-connected mediation programs that have been established for domestic relations, are limited to mediation of custody disputes. If, in the future, these programs expand to include mediation of divorce issues, these rules will be revised accordingly.

   These rules do not apply to private mediation, which may be agreed to by the parties and conducted independent of the custody proceeding. They do apply, however, whenever the court refers a custody case for mediation, regardless of whether the referral is made to a formal program established and operated by the court or to a less formal arrangement between courts and mediators such as a court-approved list of mediators or, in the absence of such a list, to individual mediators appointed by the court to mediate particular cases.

Rule 1940.2.  Definitions.

   As used in this Chapter, the following terms shall have the following meanings:

   ''Mediation'' is the confidential process by which a neutral mediator assists the parties in attempting to reach a mutually acceptable agreement on issues arising in a custody action. 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 may resolve all or only some of the disputed issues. Parties 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.

   ''Memorandum of Understanding'' is the written document prepared by a mediator which contains and summarizes the resolution reached by the parties during mediation. A Memorandum of Understanding is primarily for the benefit of the parties and is not legally binding on either party.

   ''Orientation Session'' is the initial process of educating the parties on the mediation process so that they can make an informed choice about continued participation in mediation. This process may be mandated by the court and may be structured to include either group or individual sessions. An orientation session may also include an educational program for parents and children on the process of divorce and separation and the benefits of mediation in resolving custody disputes.

Explanatory Comment--1999

   The definitions of ''orientation session'' and ''mediation'' follow 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 Pa.C.S. § 3901(b). The purpose of the orientation session is to educate the parties on the availability of mediation, the advantages and disadvantages of mediation, and the process of mediation so that the parties can make an informed decision about whether they wish to proceed further with mediation.

   The definition of mediation set forth in this rule is not intended to restrict, expand or otherwise modify the statutory definition of mediation in 42 Pa.C.S. § 5949(c) relating to confidentiality. The statutory provision defines mediation for the purpose of determining when confidentiality and privilege attach to communications made or documents submitted during a mediation session.

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 child of either party is or has been the subject of domestic violence or child 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(a)(4) requiring termination of mediation when the mediator finds that the proceeding is ''inappropriate'' for mediation. The mediator has a continuing ethical obligation, consistent with Rule 1940.4(b), 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 refer the parties to mediation. The mediation may address any issues agreed to by the parties unless limited by court order.

Explanatory Comment--1999

   Rule 1940.3 describes the circumstances under which a case may be referred to mediation. Consistent with 23 Pa.C.S. § 3901(c)(2), it prohibits the referral of any case involving past or present domestic violence or abuse because of the substantial imbalance of negotiating power that exists between the parties. The parties themselves, however, 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.

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 domestic and family violence or child abuse and a divorce and custody mediation program approved by the Academy of Family Mediators, American Bar Association, American Academy of Matrimonial Lawyers, or Administrative Office of Pennsylvania Courts;

   (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 subdivisions (1) through (3) above and is approved by the court to supervise other mediators.

   (b)  The mediator shall comply with the ethical standards of the mediator profession as well as those of his or her primary profession and complete at least 20 hours of continuing education every two years in topics related to family mediation.

   (c)  A post-graduate student enrolled in a state or federally accredited educational institution in the disciplines of law, psychiatry, psychology, counseling, family therapy or any comparable behavioral or social science field may mediate with direct and actual supervision by a qualified mediator.

Explanatory Comment--1999

   Mediator qualifications are a key component of any successful mediation program. This rule sets forth the minimum qualifications that a mediator must have in order to participate in court-connected mediation. Local 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 one of the organizations listed in subdivision (a)(2). While these are the organizations which have been recommended by mediators and other trained professionals, the Domestic Relations Procedural Rules Committee and the Administrative Office of Pennsylvania Courts may, from time to time, propose to the Court that additional organizations be added to this list. Subdivision (a)(3) of the rule requires the mediator to have his or her own professional liability insurance. Prior to mediating independently, subdivision (a)(4) of the rule requires that the mediator co-mediate at least four cases under the supervision of a court-connected mediator.

Rule 1940.5.  Duties of the Mediator.

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

   (1)  the costs of mediation;

   Official Note:  Rule 240 sets forth the procedures for obtaining leave to proceed in forma pauperis when the parties do not have the financial resources to pay the costs of litigation. This rule applies to court-connected mediation services as well, so that parties without sufficient resources may file a petition seeking a waiver or reduction of 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.

   (b)  When mediating a custody dispute, the mediator shall ensure that the parties consider fully the best interests of the child or 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.

Explanatory Comment--1999

   Rule 1940.5 sets forth the mediator's responsibilities to the parties. Subdivision (c) permits the participation of third persons with the consent of both parties. Such persons would include attorneys, other family members, mental health professionals 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 determination by the mediator that the parties are unable to reach a resolution regarding all of the issues subject to mediation;

   (2)  a determination by the mediator that the parties have reached a resolution regarding all of the issues subject to mediation;

   (3)  a determination by the mediator that the parties have reached a partial resolution and that further mediation will not resolve the remaining issues subject to mediation; or

   (4)  a determination by the mediator that the proceedings are inappropriate for mediation.

   (b)  If the parties reach a complete or partial resolution, the mediator shall, within 14 days, prepare and transmit to the parties a Memorandum of Understanding. At the request of a party, the mediator shall also transmit a copy of the Memorandum of Understanding to the party's counsel.

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

Explanatory Comment--1999

   This rule sets forth the circumstances for termination of mediation. Subdivision (a)(4) reflects the mediator's continuing ethical obligation, consistent with Rule 1940.4(b), 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, as that term is defined in Rule 1940.2.

   Reducing the parties' resolution to a binding and enforceable agreement 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.

Rule 1940.7.  Mediator Compensation.

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

Explanatory Comment--1999

   Mediator compensation is necessary to establish and maintain a quality mediation program. Presently, however, the absence of a statewide office for alternative dispute resolution means that each court must develop and secure its own funds for the mediation program. Because the availability of such funds varies significantly from court to court, each court may establish its own rate and method of compensation at this time, provided that the fees are structured so that all parties are assured equal access to mediation services. As Pennsylvania moves in the direction of a unified judicial system, a statewide fee schedule setting forth uniform fee standards may eventually be established for mediation compensation.

Rule 1940.8.  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 reasonably incurred in pursuing the sanctions.

   Official Note:  To the extent court orders are employed to direct parties regarding mediation, contempt proceedings may also be instituted to enforce these orders.

[Pa.B. Doc. No. 99-1910. Filed for public inspection November 12, 1999, 9:00 a.m.]

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