There are times when mediation of a family issue between two parties is not possible. The mediator must have the appropriate skills to screen the parties and determine that one or both of the parties cannot proceed with mediation. Termination of mediation can occur if there are issues re: domestic violence or mental health and substance abuse impairments. While it is rare, you should know the below reasons for Terminating Mediation.
Even though parties of mediation control the negotiations and ability to reach an agreement, the mediator maintains responsibility over the mediation process. Mediation must be terminated if the mediator determines that it would be unethical to proceed or that to proceed would endanger a party.
If there is a history of domestic violence, and the mediator determines that the parties cannot mediate with certain precautions (ex: arrive and depart at separate times, have an advocate in the reception room, have security present) or delay mediation to address imbalances (ex: go to counseling, obtain substance abuse treatment, obtain an attorney) the mediator needs to be prepared to safely terminate mediation. One should be careful to terminate mediation and minimize consequences. The goal is to avoid victimizing the victim and avoid shaming the batterer so that the batterer does not react by harming the victim or children. Terminating can be explained by:
1. The Mediator clearly states that it is his or her decision to stop the process at this time (it must be perceived that it is the mediator's professional decision to terminate so that blame is not placed on the victim of abuse);
2. Caucus (meet in separate rooms) with each party and explain to that party that it is the mediator's sole decision after listening to that parties concerns that mediation may not be appropriate at this time as the authorities may need to continue to investigate the details of the case (so the batter feels heard and the victim feels heard);
3. The mediator clearly states that he/she lacks the required license to address certain issues (and therefore the mediator takes the blame for termination);
4. Explain that the mediator's code of ethics prohibits mediation of cases beyond the experience of the mediator and offer referrals.
The above examples can be adapted to use for terminating mediation if there are issues with mental health and substance abuse impairments too. In addition, with such impairments, it's important to caucus with each party and carefully question the current status of the parties in a manner that permits the parties to decide that it is not appropriate at this time to mediate. For example: “You shared that you are not currently taking your prescription medication and you are aware that there are consequences to stopping your mediation. Do you believe mediation is in your best interest at this time? Possibly an attorney and your doctor can help you determine what is in your best interest at this time?”
Mediation is a powerful process that allows parties to discuss and agree upon the next step in their lives. One must understand that terminating mediation does not necessarily mean that the parties and the mediator failed. The termination provides that next step for the parties , one that can be adequately addressed by an appropriate professional (mental health, custody evaluator, doctor, etc.). Hopefully, by providing referrals and distancing victims from further harm, one of the parties will hopefully take the necessary steps to obtain needed help.
Do you need legal representation to assist you with Terminating Mediation? Contact us today.
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