Application of These Standards
Family Dispute Resolution (“FDR”) refers to any dispute resolution process that is provided by a third party professional with the goal of assisting separating parties and/or family members in conflict to reach a mutually acceptable agreement to issues submitted for resolution.
These standards of practice are intended to apply to professionals acting in support of an FDR process or in support of those involved in an FDR process. At the same time it is recognized that FDRIO includes members from diverse professions whose roles vary and includes advocates, neutrals, expert consultants, coaches and therapists. FDRIO also addresses a range of family conflicts such as separation, child protection, elder care and estate issues. This diversity needs to be taken into account in implementing these standards.
FDRIO’s members include professionals governed by other codes of conduct mandated by their profession. These standards of practice are intended to be applicable only to their role in FDR.
Purpose and Interpretation
These standards are intended to serve as ethical guidelines, within a variety of settings, including court. They serve to guide decision-making of FDR professionals, to protect parties utilizing FDR processes, and to promote best practices and public confidence in all FDR processes for resolving family law disputes.
These Standards are to be read and construed in their entirety. There is no priority attached to the sequence in which the Standards appear.
“Shall” indicates a mandatory practice, and “should” indicates a highly desirable and encouraged practice that is to be departed from only for strong reasons.
Standard 1: Respect Party Self-Determination
Durable, high quality FDR outcomes must be the product of individuals exercising informed self-determination. FDR Professionals shall respect and encourage self-determination by the parties in their decision-making and shall seek direction from the parties as to the role that would be most helpful.
- Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to the process and outcome. Parties are encouraged to exercise self-determination at all stages of an FDR process, including choice of process provider, process design, participation in or withdrawal from the process (unless there is a submission to arbitration).
- Participation in an FDR process is voluntary. FDR professionals shall proceed with cases only if they are satisfied that the parties have provided informed consent to participate. Informed consent includes ensuring that the parties understand the nature of the proposed process, the relative merits of other FDR process options, and the consequences of participation in the proposed process.
- An FDR professional shall raise questions for the parties to consider regarding the sufficiency, feasibility and legal appropriateness of proposed settlement options, including their impact on third parties and particularly children. An FDR professional may, if requested to do so by the parties, make suggestions for their consideration. But at no time shall a FDR professional substitute their preferred outcome for that of a party.
- An FDR professional shall strongly recommend that both parties obtain independent legal advice to ensure awareness and understanding of their rights and responsibilities to each other, their children and affected third parties. It is the responsibility of all FDR professionals to ensure the parties know the possible risks to a durable and enforceable agreement if either party refuses to follow this advice. If a party declines to obtain independent legal advice, this refusal should be noted in writing if the opportunity presents itself. FDR professionals shall provide information to clients about all available options for legally aided, unbundled or reduced fee options, but the parties may proceed. If the FDR professional feels that the absence of legal support for a party presents a power imbalance that cannot be managed appropriately, they should withdraw and explain their reasons in writing.
- If, in the FDR professional’s judgment, a tentative agreement reached by the parties may be illegal, unconscionable or harmful, the FDR professional shall so inform the parties. The professional may discontinue the process in such circumstances, but shall not violate the obligation of confidentiality.
- FDR professionals shall terminate a process where:(a) Continuation of the process would harm or prejudice either of the parties, or
(b) In the case of mediation, the utility of the process has been exhausted.
Standard 2: Establish and Maintain Competence
FDR Professionals shall have and maintain competency in dispute resolution methods and skills, including where appropriate identifying, assessing and addressing cultural and gender issues, power imbalances and family violence and how those issues may impact the relevant FDR process. In particular the professional will ensure current substantive knowledge in their own field, meeting expectations for continuing education. Where a particular matter exceeds their competence, experience or skill-set, the FDR professional shall seek assistance, or refer a case to another professional with appropriate skills and experience for that matter.
- All FDR Professionals shall obtain training in the FDR methods in which they practice, including current theory and necessary skills.
- All FDR Professionals shall disclose to their prospective client(s) the extent of their skills, knowledge, or experience that may be relevant to a particular case. If they lack competence, the FDR Professional should seek appropriate assistance, or decline from serving (or withdraw as the case may be.)
- In the event that a party expresses concerns about the competence of the FDR Professional, it is the duty of that professional to inform the party that they have the option of withdrawing from the process (if it is not a decision-making process).
Standard 3: Do No Harm
All FDR Professionals shall consider safety and the chance of harm to those involved (parties and professionals) in any FDR process being conducted, including harm to those not directly involved such as children or other members of the family, as appropriate. FDR professionals shall acquire knowledge and skills relating to identifying, assessing and managing power imbalances including family violence. All Certified FDRPs shall comply with the Screening Guidelines for their section.
- FDR Professionals are working with parties at a time of high emotion and personal crisis and a higher risk for family violence (including murder and murder-suicide), mental illness, substance abuse and other harmful coping mechanisms. Thus it is essential for competent professionals working with FDR to acquire and maintain skills appropriate to the challenges of working in this area.
- Separations tend to create or exacerbate various forms of power imbalance, which can negatively impact a party’s ability to exercise self-determination.
- FDR Professionals shall incorporate, as part of their intake processes, questions and interaction designed to identify, assess and manage the identified risks when working with separating people in a dispute resolution process.
- Where a party appears to be acting under coercion or fear, or without capacity to comprehend the process and make decisions, the FDR Professional shall explore these concerns with the party in an individual, confidential meeting to assess the risks of proceeding and whether there are issues of capacity or volition.
- Where the FDR Professional assesses that there is a risk to the safety of a party, child or third party, they shall conduct the appropriate form of safety planning.
Standard 4: Respect the Rights of Children
FDR Professionals who interact with children or issues relating to children shall endeavour to give each child a voice and input as to their views and preferences in relevant parenting issues, in a manner appropriate to the child’s stage of development, and in keeping with the competence of the professional.
- Where parenting issues impact children, FDR Professionals involved with such issues shall advise parties of the rights children to have their views and preferences heard as appropriate given their ages and stages of development.
- FDR Professionals should be familiar with professionals in their communities who will interview children for the purpose of ascertaining their views and preferences and/or act for children in FDR processes.
- FDR professionals should be familiar with the research on the impact of conflict, violence and abuse on children, and should educate themselves and the parties about the means by which conflict can be reduced in such situations.
Standard 5: Maintain Confidentiality and Inform Parties of Exceptions
All FDR Professionals shall maintain the confidentiality of all communications made within the FDR process, unless otherwise obligated by statute or contract.
- Subject to paragraphs 5 and 6 below, all information obtained by the FDR Professional during the intake/screening meeting, including notes and intake forms completed by the parties, shall be kept confidential.
- All FDR Professionals shall, prior to commencing an FDR process, clarify with parties their rules for sharing information provided during any caucus session.
- FDR Professionals shall maintain confidentiality in all aspects of their FDR work, including the training and direction of staff, and with regard to the storage and destruction of any contents of their paper and electronic files.
- All FDR Professionals shall take steps to ensure that any third parties who are participating in the process are informed of and bound by the same confidentiality provisions as those that bind the parties and the FDR Professional.
- All FDR Professionals shall inform parties of the exceptions to confidentiality before the parties begin the process. These exceptions follow:
-All FDR Professionals have a duty to report a child in need of protection pursuant to s. 72 of the Children’s Law Reform Act.
-All FDR Professionals have a duty to warn a person and/or report to the police or other authority as appropriate, when they obtain information that discloses an actual or potential threat to any person’s life or safety.
-Any court may order an FDR Professional to provide the contents of their file and testify about communications made during an FDR process where the court determines it is in the public interest to do so.
6. FDR Professionals may use information obtained during an FDR process for the purpose of education, training and certification of other FDR Professionals or the public, on the strict condition that all possibly identifying information is removed.
Standard 6: Ensure Freedom from Conflicts of Interest
Process integrity depends on FDR professionals operating without actual or perceived conflicts of interest. All FDR Professionals shall, as far as possible, make appropriate inquiries at the outset of the matter to avoid conflicts of interest which may undermine confidence in their services and thereby the process, and shall disclose all actual or perceived conflicts of interest as soon as they come to the professional’s attention.
A conflict of interest can arise from involvement by the FDR Professional before, during or after the FDR process.
- All FDR Professionals shall disclose, as soon as possible, any facts or relationships that may infer an actual or potential conflict of interest. After disclosure, if all parties agree in writing, the FDR Professional may continue, subject to their own right to withdraw if they choose.
Standard 7: Establish and Maintain Quality of the Process
All FDR Professionals should conduct their processes in accordance with these Standards and in a manner that reasonably promotes timeliness, safety, participation of the appropriate participants, informed decision-making, procedural fairness, party competency, and mutual respect.
- FDR professionals should inform parties of the need to be realistic in protecting themselves against possible abuses of the process. If the FDR Professional becomes concerned that the process is being used in bad faith by one party to disadvantage the other, eg/ by the passage of time, lying, creation of a status quo, failure to provide disclosure, failure to comply with interim agreements, etc., the FDR professional shall raise the issue with the abusing party or their representative.
- FDR Professionals working on matters where time limitations apply should be aware of relevant time limitations for starting legal actions, and should inform the parties that the FDR process may not act to stop the limitation period from passing, and to obtain independent legal advice on such matters.
- The FDR professional shall be open and honest about the possible need to suspend or terminate the FDR process when its usefulness has been apparently compromised or exhausted. In such cases the FDR professional should assist the parties in accessing more suitable processes and resources and should terminate the process without blaming either party nor violating confidentiality.
Standard 8: Remain Impartial and Neutral
- All FDR professionals shall be impartial as between the parties and neutral with respect to any particular outcome.
- Before accepting appointments FDR professionals shall disclose to all parties any circumstances of which they are aware that may give rise to a reasonable apprehension of bias or preference.
- FDR professionals who, during an FDR process, become aware of circumstances that may give rise to a reasonable apprehension of bias or preference shall promptly disclose them to the parties and advise them of their individual or collective right to terminate the process.
- In the event of challenges by a party on the basis that circumstances exist that may give rise to a reasonable apprehension of bias or preference, FDR professionals shall facilitate their prompt disposition in accordance with the appropriate procedures for the FDR process. Such dispositions may include, in the case of mediation, the termination of the mediation or selection of another mediator, and, in the case of arbitration or parenting coordination, a hearing conducted by the arbitrator or parenting coordinator on the challenge. FDR professionals shall be neutral in their management of the process and in the ultimate determination of the outcome of the challenge.
- FDR professionals who become aware after an appointment that they may not be able to maintain neutrality or impartiality shall withdraw.
Standard 9: Engage in Honest Advertising
FDR Professionals have a duty to ensure that their advertising is honest and informational.
- FDR professionals should be truthful and not misleading when advertising, soliciting or otherwise communicating their qualifications, experience, services and fees, or when describing the FDR process or processes in which they work.
- FDR professionals should not infer any guarantees or certainties about outcome in their promotional or other communications.
- FDR professionals should not include the names of former clients without the consent of those clients.
- FDR professionals should conduct their marketing campaigns with integrity and professional dignity.
Standard 10: Create Clear Expectations about Fees and Charges
FDR Professionals shall discuss openly and honestly all charges that may be incurred in connection with the proposed FDR process. The rates to be charged shall be clear, whether by time spent, action performed, stages accomplished or otherwise so that participants in FDR may be reasonably advised in advance by the account or invoice of an FDR professional. All agreements regarding fees shall be in writing.
- An FDR professional shall not enter into a fee agreement which is contingent on the result of the process or amount of any settlement.
- Where the FDR professionals is acting as a neutral, they may accept unequal fee payments on consent of the parties. The arrangement should not adversely impact their impartiality.
- While many participants desire estimates of total cost, they are generally inadvisable given the inability to accurately predict the amount of time required to reach resolutions. If an estimate is given, the FDR professional should confirm the estimate in writing with appropriate disclaimers about how this estimate may be exceeded.
Standard 11: Enter into Complete Process Agreements
All FDR professionals shall enter into written agreements with their clients that describe the process or service to be provided by the professional and are, where appropriate, consistent with these Standards. The professional shall include any requirements that are legally mandated, such as under the Ontario Arbitration Act Regulation.
- This Standard has as its objective the creation of clear expectations and legally enforceable agreements that meet best practices in the field.
- FDR Agreements shall include the following provisions:
(a) The issues/jurisdiction of the selected FDR process
(b) Whether the process is open or closed, where those options exist
(c) The FDR professional’s process
(d) Relevant disclosure requirements
(e) The meaning of confidentiality and its limits, and without prejudice
(f) Termination of the process by the parties or the FDR professional
(g) Independent Legal Advice
(h) The FDR Professional’s fees.
Standard 12: Settlement Documents
- Where parties reach a settlement in an FDR process, the FDR professional shall not witness their signatures on any settlement documents.
- If the parties settle matters in mediation, the mediator may prepare a written summary of what the mediator understood took place (“Memorandum of Understanding”, “MOU”, “Progress Notes”, etc.) . Such documents must stipulate that they are not final and binding and that they are intended for legal review. FDR professionals shall not allow parties to sign such documents unless they both have lawyers present.
- FDR professionals shall recommend to unrepresented parties that they obtain independent legal advice (“ILA”) before committing to proposed settlements made in FDR processes, and shall refer the parties to locally available sources of appropriate ILA.
- FDR professionals may draft settlement documents including Draft Separation Agreements, Draft Amending Agreements, Draft Minutes of Settlement, Draft Consents to Change Orders, etc., provided that:
(a) The draft documents include a preamble stipulating that the document is a draft only, intended for legal review;
(b) the parties undertake to obtain ILA and
(c) the parties undertake that they will not sign any such document until it has been reviewed and finalized by a lawyer who will witness their signatures.
Standard 13: Advance FDR Generally
All FDR Professionals should encourage understanding and respect for all forms of Family Dispute Resolution. FDR Professionals should promote this Standard by:
- seeking out opportunities to learn more about diverse FDR options.
- fostering greater awareness of the impact of abuse, violence, mental health difficulties and forms of power imbalance in FDR processes.
- taking steps to increase accessibility to FDR processes, including offering services at a reduced or pro bono rate and supporting court-connected services and other community initiatives to enhance access to FDR processes.
- participating in research when given the opportunity, including obtaining confidential participant feedback when possible.
- assisting the public and other professionals to develop an understanding and appreciation of the many FDR processes, and the criteria for selecting the most helpful option.
- assisting new FDR professionals in developing a practice through training, mentoring, and providing internships.
- demonstrating respect for differing points of view within the FDR field, seeking to learn from other FDR professionals and working together with other FDR professionals to improve the profession and better serve people in family conflict.