by Steve Erickson
We should never, ever again have to read about a mom or dad killing themselves and their children after losing a bitter custody dispute.
Unfortunately, however, this type of case is not entirely uncommon. Kathleen Russell, of the Center for Judicial Excellence, reported at least 287 cases since 2008 of parents in custody fights who killed their children (see below for cite). These instances, along with the recent local case of the Orono woman who killed her 5-year-old son and herself, are tragic – not only for the parties and the immediate family – but for the family court system as a whole.
I feel deeply for all those affected by this tragedy – and I can relate. As a young attorney in 1976, I had a similar experience when I lost a client in a contested divorce. I represented Lorraine Brown, the mother of four children, in July 1976, and she was killed by her husband the day after a temporary hearing in family court. I will never forget her.
For me, I began to question operating in the court system that did more to create volatile hostility than meaningfully resolve it. I questioned there being only a “winner” and a “loser,” even though the best course of action would be for the clients to work together as parents. But as an attorney going in to family court, if I said to my client “We must do everything possible to help the other side get a just result,” I could be criticized by a client for violating my duty to be a zealous advocate.
Then, in 1977, I learned about divorce mediation. I began to see that there was a better way than litigation. After 40 years as a mediator, I have discovered the following:
1. The adversarial system for families is like a strong undertow at the beach, continually pulling parents apart, creating conflict by the way it goes about its work.
2. The courts cannot teach cooperation, because that is not what they are designed to do.
3. Most parents have within them the capacity to cooperate as separate parents, if they can tap into that spark of goodness that all parents have in caring for their children.
4. A professional family mediator can be exceedingly influential in assisting parents to cooperate, thereby avoiding the battle. Here’s how:
Consider the Orono mother who chose litigation over court-ordered mediation. Would it not have been better for a mediator to say to both parents, “Folks, you do not have to fight over custody – it is too damaging. Instead, I am going to help both of you realize that your five-year-old needs you, as the parents, to resolve your conflict. He loves both of you! As your mediator, I will guide you through a system of structured discussions, and through these discussions, you will likely see that you can only get a good result for yourself when you also help the other also obtain a good result.”
Kathleen Russell quoted in USA Today, Oct. 25, 2014 reported by Marisol Bello in “When Parents Kill: FBI Data Reveal Disturbing Patterns.”
by Steve Erickson
In the interest of clarifying the rationale for credentialing mediators, the following questions are answered in this article:
1. “Why do we need credentialing when there are so many paths already for certifying mediators?”
a) Because these paths are not paths that were designed by professional family mediators. The paths were mostly designed by Courts, the Bar or other governmental entities to allow already credentialed professionals (mainly members of the Bar) to hold themselves out to the public as competent, state-certified mediators, in addition to their being certified in their profession of origin.
b) Because these paths for certification of mediators have not required sufficient levels of training, experience and supervision, they, most generally, require only 30-40 hours of basic mediation training to become certified, which is not enough to teach and learn all that is required for becoming a professional family mediator.
c) Most importantly, they can be seen as an opportunity for lawyers to expand their practices to take advantage of some of the mediation market that has been created. Persons wishing to hold themselves out to the public as mediators can now hold themselves out as “State Certified or Supreme Court Qualified” However,
d) Those lists serve the needs of the court system, not the public.
e) Some of those lists exclude behavioral science professionals, such as Rule 8.9 Roster of Alternative Dispute Resolutions Neutrals, North Dakota State Supreme Court Rules, which says: “
4) Post-Judgment Domestic Relations Mediator Roster. A domestic relations proceedings mediator shall complete 40 hours’ minimum of domestic relations mediation training, including two hours minimum of domestic abuse training, and nine hours of continued domestic relations mediation training during each three-year period, and have a license to practice law, supplemented with two years of experience in domestic relations.” If one does not possess a license to practice law, that individual is not considered for qualifying as a domestic relations mediator.
2. “Isn’t all this activity on the part of governmental agencies that create “certification” lists beneficial, leading to expanding the use and development of mediation?”
a) Unfortunately, they have gotten it completely wrong. They are not expanding the use and development of mediation, but adjudicative processes, which they call mediation.
b) These list-makers most often confuse mediation with settlement conferencing, neutral evaluation or some other coercive, adjudicative procedure, under the guise of mediation. For example, consider a statement in the Dakota County Website (Minnesota) describing mediation resources for the public:
Mediation can help resolve issues with a spouse during the divorce process. To learn more, read about Early Neutral Evaluation.
Please click the above link which is reproduced exactly as it appears at
2. In Minnesota, Early Neutral Evaluation (ENE) has become the preferred process the court relies upon for ADR. In my discussions with judges and attorneys who favor ENE over mediation, the response has frequently been that it is certainly appropriate to tell the public that it is “mediation.” They argue that describing ENE as mediation is justified because after the retired judge or ENE attorney is finished evaluating the case, by predicting the likely outcome in court, there is a wonderful opportunity to settle the case at that point when the attorneys are present at the courthouse with their clients. Because many cases do settle at that point, therefore, it is “mediation.”
3. “Why not let a hundred flowers bloom? Is there anything really wrong with encouraging a variety of mediation models?”
a) Unfortunately, these other flowers are not models of mediation, but rather, versions of adjudicative practice.
b) It could possibly be argued that, in some fields, the proliferation of various versions of ADR is a good thing, but that observation only works in established fields, such as psychology, for example, which has had many years of professional development, enabling it to define itself over a long period of time. A healthy debate between the behaviorists, the humanists, and the cognitive therapists is good for the field. Such a view is not good for mediation because:
1. Mediation is not yet a developed field like psychology (although it can be argued that mediation credentialing faces the same challenges as were faced by the early psychologists).
2. Mediation is quite different, because, unlike psychology which in its early years did not face a competing industry, mediation does face a competing industry of conflict-resolvers who employ a competitive approach to conflict resolution and who wish to maintain a monopoly on the business for a fee.
c) Because Family Mediation is still emerging and defining itself as a profession, a variety of versions have actually hindered the development of the profession of family mediation and confused the public by creating the notion that anything that pertains to conflict resolution (either cooperative or competitive processes) can be called mediation. This has resulted in a variety of conflict resolution procedures being passed off as mediation, when they are in fact coercive, adjudicative models which they call mediation. Examples are ENE (early neutral evaluation), directive mediation, evaluative mediation, med-arb, cooperative law, collaborative law, and mediation advocacy.
d) In the end, the hundred flowers approach is confusing to a public that does not know what process they are submitting to. This approach has inhibited the growth of mediation, because, in these approaches, there is no clear definition of what constitutes effective professional family mediation. There is no adherence to the Standards of Practice for Family Mediators which is accepted by the ABA, ACR and the APFM. Therefore, if the Standards of Practice for Family Mediators are not uniformly followed, it is difficult to measure competency of its practitioners. Credentialing will solve these problems and redirect the negative, one-way influences that the adversarial system has had on mediation. It will accomplish this by its adherence to the Standards of Practice for Family Mediators as the basis for best practices and professionalism in the field. The article by Marvin Johnson and Stephen Erickson titled “ADR Techniques and Procedures Flowing Through Porous Boundaries: Flooding the ADR Landscapes and Confusing the Public,” “…addresses this growing trend in ADR—the blurring of boundaries between various ADR processes. This blurring of boundaries raises crucial issues to the further development of the field, particularly regarding fundamental distinctions between ADR processes that encourage cooperative behavior versus those that encourage competitive behavior…The intention of this article is to raise questions designed to clarify more principled boundaries between various ADR processes in order to assist the public and the practitioner to understand truly what the profession is offering and to protect consumer choice. The authors set forth what they believe are principled boundary distinctions between more client-centered cooperative ADR processes and more legally focused, adjudicative, competitive ADR processes to enable parties to understand the fundamental principles guiding each approach and to make better choices about which approach will better meet their goals in particular cases.” (Full article available from Steve Erickson, Erickson Mediation Institute or Marvin Johnson, Center for Alternative Dispute Resolution.)
4. “Could you please tell me what you are trying to accomplish by your efforts at credentialing?
a) Many say credentialing is needed to protect the public. That is an important goal, and we must help the public be informed about the process it is receiving.
b) Another important goal is to provide a uniform, acceptable definition of professional family mediation practices. The Standards of Practice for Family Mediators defines the field of mediation as a process that is:
2. Respectful of self-determination.
3. Client-centered and not law-centered, not diagnostic-centered, not behavioral pathology-centered, not therapy-centered, not relational transforming-centered.
4. Self-Empowering and engaged in by people who are competent to make intelligent decisions for themselves, if given proper guidance, assistance, education, and encouragement.
5. The preferred process of conflict resolution for families and children.
6. The process that has been practiced for 46 years, and has extensive research supporting it as a unique profession.
c) We are also trying to create a credentialing process that will:
1. Provide the public with information to make an informed choice about which dispute resolution process they wish to choose to engage in.
2. Partner with existing family-focused mediation organizations that have made courageous initial efforts at credentialing.
3. Enhance the professionalism of the field such that mediators may not simply choose to call themselves “certified on a particular list” mediators when advertising to the public, but must first attain a level of skill and professionalism to be able to hold themselves out to the public as a credentialed “Professional Family Mediator.”
4. Prevent mediation from becoming a backwater sub-specialty of the practice of law.
5. Prevent the public from being misled about what constitutes best practices as a mediator.
6. Discourage marketing approaches that label a prospective professional mediator as a “Retired Judge Mediator,” “Therapist Mediator,” “Early Neutral Evaluative Mediator,” or “Lawyer Mediator,” because these are misleading to the public by combining two distinctly different professions. Moreover, such merging of two professions raises serious questions about which ethical standards should be followed in a given case.
5. “How will you determine what is competent mediation?”
a) The field has grown considerably since the early 1980s, when the original Family Mediation Association and the Academy of Family Mediators were formed. The successor organization, the Academy of Professional Family Mediators has developed thoughtful and rigorous Standards of Practice based upon the experience of thousands of family mediators since 1974. These standards serve as a solid platform to go forward with credentialing.
b) Under ICE (the Institute for Credentialing Excellence) procedures, subject matter experts familiar with these Standards of Practice will be chosen to help further refine and develop criteria for determining professional excellence and mediator qualifications.
c) An important principle behind developing criteria for measuring professional excellence is the foundational belief that professional family mediators are client-centered, not coercive in their work, and respectful of the participants’ self-determination. The credentialing process will embrace many models and approaches to family mediation, except those that employ a process of mediation that is adjudicative or that attempts to predict for a mediation client outcomes of court decisions ( See APFM Standard XI D, and, more generally, Standard VI).
6. “Won’t this really cost a lot?”
a) This depends on what exactly one values. For the professional family mediator, this credentialing legitimizes the practice of family mediation as valid, reliable, and legally defensible.
b) Estimates are that to accomplish a legally solid process using ICE (Institute for Credentialing Excellence) and NCCA (National Commission for Certification Services) requirements, it would cost in the neighborhood of $300,000.
7. “Why would mediators want to spend all of that money for something that there might not be a demand for?”
a) Before the original Academy of Family Mediators merged with SPIDR (The Society of Professionals in Dispute Resolution) and CRENET (Conflict Resolution Education Network) in 2001, it had over 4,000 family mediation members, and the field was vibrant and expanding. Certification now would revitalize the field by establishing industry standards (as professionalized by ICE) that many mediators would find useful for their own professional standing in the community.
b) There is a reason that people seek certification: It defines and legitimizes the profession of family mediation. Below is a list of just a few of the occupations that have recently taken the time and spent the money to obtain credentialing authority from ICE and NCCA:
1. Certified Personal Trainer
2. Certified Wound Care Associate
3. Certified Retirement Counselor
4. Certified Irrigation Contractor
5. Certified Valuation Analyst
6. Certified Paralegal
7. Certified Professional Dog Care Trainer
8. Certified Culinary Educator
9. Certified Addiction Treatment Counselor
There are many other occupations that have sought credentialing under the auspices of ICE and NCCA. For a complete listing, please see their website at www.credentialingexcellence.org.
The time to complete this work is now.
Won’t you join us in this important effort and contribute $100 or $500 or whatever you can to this effort? The Professional Mediation Board of Standards is a 501(c)(3) not-for-profit corporation organized under the laws of the State of Minnesota and your donation is tax deductible. Donations are accepted by mail at:
Professional Mediation Board of Standards
Suite 105, 3600 American Blvd. West
Bloomington, MN 55431
As soon as the Board of Standards website is up, it will accept PayPal and credit cards, and we will post its activation here. Thank you.
Stephen K. Erickson, J.D., is one of the founders of the original Academy of Family Mediators, started in 1980, and is a Founding Board Member of the Academy of Professional Family Mediators. He has practiced exclusively as a family mediator since 1980. He also helped create the first 40-hour divorce mediation training that took place in 1981, and he continues to write, teach and mediate.
After 11 years of marriage, Sarah Weeldreyer is going through a divorce — and trying to do it amicably. Melissa Smith, who went through her own divorce via mediation last year, offers some advice.
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