(a) Purpose (§ 350).
This rule establishes mandatory standards of practice and administration for court-connected dependency mediation services in accordance with section 350. This rule is intended to ensure fairness, accountability, and a high quality of service to children and families and to improve the safety, confidentiality, and consistency of dependency mediation programs statewide.
(Subd (a) amended effective January 1, 2007.)
(1) "Dependency mediation" is a confidential process conducted by specially trained, neutral third-party mediators who have no decision-making power. Dependency mediation provides a nonadversarial setting in which a mediator assists the parties in reaching a fully informed and mutually acceptable resolution that focuses on the child's safety and best interest and the safety of all family members. Dependency mediation is concerned with any and all issues related to child protection.
(2) "Safety and best interest of the child" refers to the child's physical, psychological, and emotional well-being. Determining the safety and best interest of the child includes consideration of all of the following:
(A) The preservation and strengthening of the family and family relationships whenever appropriate and possible;
(B) The manner in which the child may be protected from the risk of future abuse or neglect;
(C) The child's need for safety, stability, and permanency;
(D) The ongoing need of the child to cope with the issues that caused his or her involvement in the juvenile dependency system;
(E) The child's need for continuity of care and the effect that removal and subsequent placements have had, or may have, on the child; and
(F) The child's education, which includes the child's participation, progress, need for assistance, cognitive development and, if applicable, early childhood education and care, the need for special education and related services, and the extent to which the child has or has had limited English proficiency (LEP).
(3) "Safety of family members" refers to the physical, psychological, and emotional well-being of all family members, with consideration of the following:
(A) The role of domestic violence in creating a perceived or actual threat for the victim; and
(B) The ongoing need of family members to feel safe from physical, emotional, and psychological abuse.
(4) "Differential domestic violence assessment" is a process used to assess the nature of any domestic violence issues in the family so that the mediator may conduct the mediation in such a way as to protect any victim of domestic violence from intimidation and to correct for power imbalances created by past violence and the fear of prospective violence.
(5) "Protocols" refer to any local set of rules, policies, and procedures developed and implemented by juvenile dependency mediation programs. All protocols must be developed in accordance with pertinent state laws, California Rules of Court, and local court rules.
(Subd (b) amended effective January 1, 2008; previously amended effective January 1, 2007.)
(c) Responsibility for mediation services.
(1) Each court that has a dependency mediation program must ensure that:
(A) Dependency mediators are impartial, are competent, and uphold the standards established by this rule;
(B) Dependency mediators maintain an appropriate focus on issues related to the child's safety and best interest and the safety of all family members;
(C) Dependency mediators provide a forum for all interested persons to develop a plan focused on the best interest of the child, emphasizing family preservation and strengthening and the child's need for permanency;
(D) Dependency mediation services and case management procedures are consistent with applicable state law without compromising each party's right to due process and a timely resolution of the issues;
(E) Dependency mediation services demonstrate accountability by:
(i) Providing for the processing of complaints about a mediator's performance; and
(ii) Participating in any statewide and national data-collection efforts;
(F) The dependency mediation program uses an intake process that screens for and informs the mediator about any restraining orders, domestic violence, or safety-related issues affecting the child or any other party named in the proceedings;
(G) Whenever possible, dependency mediation is conducted in the shared language of the participants. When the participants speak different languages, interpreters, court-certified when possible, should be assigned to translate at the mediation session; and
(H) Dependency mediation services preserve, in accordance with pertinent law, party confidentiality, whether written or oral, by the:
(i) Storage and disposal of records and any personal information accumulated by the mediation program; and
(ii) Management of any new child abuse reports and related documents.
(2) Each dependency mediator must:
(A) Attempt to assist the mediation participants in reaching a settlement of the issues consistent with preserving the safety and best interest of the child, first and foremost, and the safety of all family members and participants;
(B) Discourage participants from blaming the victim and from denying or minimizing allegations of child abuse or violence against any family member;
(C) Be conscious of the values of preserving and strengthening the family as well as the child's need for permanency;
(D) Not make any recommendations or reports of any kind to the court, except for the terms of any agreement reached by the parties;
(E) Treat all mediation participants in a manner that preserves their dignity and self-respect;
(F) Promote a safe and balanced environment for all participants to express and advocate for their positions and interests;
(G) Identify and disclose potential grounds on which a mediator's impartiality might reasonably be challenged through a procedure that allows for the selection of another mediator within a reasonable time. If a dependency mediation program has only one mediator and the parties are unable to resolve the conflict, the mediator must inform the court;
(H) Identify and immediately disclose to the participants any reasonable concern regarding the mediator's continuing capacity to be impartial, so they can decide whether the mediator should withdraw or continue;
(I) Promote the participants' understanding of the status of the case in relation to the ongoing court process, what the case plan requires of them, and the terms of any agreement reached during the mediation; and
(J) Conduct an appropriate review to evaluate the viability of any agreement reached, including the identification of any provision that depends on the action or behavior of any individual who did not participate in creating the agreement.
(Subd (c) amended effective January 1, 2007.)
(d) Mediation process.
The dependency mediation process must be conducted in accordance with pertinent state laws, applicable rules of court, and local protocols. All local protocols must include the following:
(1) The process by which cases are sent to mediation, including:
(A) Who may request mediation;
(B) Who decides which cases are to be sent to mediation;
(C) Whether mediation is voluntary or mandatory;
(D) How mediation appointments are scheduled; and
(E) The consequences, if any, to a party who fails to participate in the mediation process.
(2) A policy on who participates in the mediation, according to the following guidelines:
(A) When at all possible, dependency mediation should include the direct and active participation of the parties, including but not limited to the child, the parents or legal guardian, a representative of the child protective agency, and, at some stage, their respective attorneys.
(B) The child has a right to participate in the dependency mediation process accompanied by his or her attorney. If the child makes an informed choice not to participate, then the child's attorney may participate. If the child is unable to make an informed choice, then the child's attorney may participate.
(C) Any attorney who has not participated in the mediation must have an opportunity to review and agree to any proposal before it is submitted to the court for approval.
(D) As appropriate, other family members and any guardian ad litem, CASA volunteer, or other involved person or professional may participate in the mediation.
(E) A mediation participant who has been a victim of violence allegedly perpetrated by another mediation participant has the right to be accompanied by a support person. Unless otherwise invited or ordered to participate under the protocols developed by the court, a support person may not actively participate in the mediation except to be present as a source of emotional support for the alleged victim.
(3) A method by which the mediator may review relevant case information before the mediation.
(4) A protocol for providing mediation in cases in which domestic violence or violence perpetrated by any other mediation participant has, or allegedly has, occurred. This protocol must include specialized procedures designed to protect victims of domestic violence from intimidation by perpetrators. The protocol must also appropriately address all family violence issues by encouraging the incorporation of appropriate safety and treatment interventions in any settlement. The protocol must require:
(A) A review of case-related information before commencing the mediation;
(B) The performance of a differential domestic violence assessment to determine the nature of the violence, for the purposes of:
(i) Assessing the ability of the victim to fully and safely participate and to reach a noncoerced settlement;
(ii) Clarifying the history and dynamics of the domestic violence issue in order to determine the most appropriate manner in which the mediation can proceed; and
(iii) Assisting the parties, attorneys, and other participants in formulating an agreement following a discussion of appropriate safeguards for the safety of the child and family members; and
(C) A mediation structure designed to meet the need of the victim of violence for safety and for full and noncoerced participation in the process, which structure must include:
(i) An option for the victim to attend the mediation session without the alleged perpetrator being present; and
(ii) Permission for the victim to have a support person present during the mediation process, whether he or she elects to be seen separately from or together with the alleged perpetrator.
(5) An oral or written orientation that facilitates participants' safe, productive, and informed participation and decision making by educating them about:
(A) The mediation process, the typical participants, the range of disputes that may be discussed, and the typical outcomes of mediation;
(B) The importance of keeping confidential all communications, negotiations, or settlement discussions by and between the participants in the course of mediation;
(C) The mediator's role and any limitations on the confidentiality of the process; and
(D) The right of a participant who has been a victim of violence allegedly perpetrated by another mediation participant to be accompanied by a support person and to have sessions with the mediators separate from the alleged perpetrator.
(6) Protocols related to the inclusion of children in the mediation, including a requirement that the mediator explain in an age-appropriate way the mediation process to a participating child. The following information must be explained to the child:
(A) How the child may participate in the mediation;
(B) What occurs during the mediation process;
(C) The role of the mediator;
(D) What the child may realistically expect from the mediation, and the limits on his or her ability to affect the outcome;
(E) Any limitations on the confidentiality of the process;
(F) The child's right to be accompanied, throughout the mediation, by his or her attorney and other support persons; and
(G) The child's right to leave the mediation session if his or her emotional or physical well-being is threatened.
(7) Policy and procedures for scheduling follow-up mediation sessions.
(8) A procedure for suspending or terminating the process if the mediator determines that mediation cannot be conducted in a safe or an appropriately balanced manner or if any party is unable to participate in an informed manner for any reason, including fear or intimidation.
(9) A procedure for ensuring that each participant clearly understands any agreement reached during the mediation, and a procedure for presenting the agreement to the court for its approval. This procedure must include the requirement that all parties and the attorneys who participate in the agreement review and approve it and indicate their agreement in writing before its submission to the court.
(Subd (d) amended effective January 1, 2007; previously amended effective January 1, 2005.)
(e) Education, experience, and training requirements for dependency mediators.
Dependency mediators must meet the following minimum qualifications:
(1) Possession of one or more of the following:
(A) A master's or doctoral degree in psychology, social work, marriage and family therapy, conflict resolution, or another behavioral science substantially related to family relationships, family violence, child development, or conflict resolution from an accredited college or university; or
(B) A juris doctorate or bachelor of laws degree;
(2) At least two years of experience as an attorney, a referee, a judicial officer, a mediator, or a child welfare worker in juvenile dependency court, or at least three years of experience in mediation or counseling, preferably in a setting related to juvenile dependency or domestic relations; and
(3) Completion of at least 40 hours of initial dependency mediation training before or within 12 months of beginning practice as a dependency mediator. Currently practicing dependency mediators must complete the required 40 hours of initial training by January 1, 2006. The training must cover the following subject areas as they relate to the practice of dependency mediation:
(A) Multiparty, multi-issue, multiagency, and high-conflict cases, including:
(i) The roles and participation of parents, other family members, children, attorneys, guardians ad litem, children's caregivers, the child welfare agency staff, CASA volunteers, law enforcement, mediators, the court, and other involved professionals and interested participants in the mediation process;
(ii) The impact that the mediation process can have on a child's well-being, and when and how to involve the child in the process;
(iii) The methods to help parties collaboratively resolve disputes and jointly develop plans that consider the needs and best interest of the child;
(iv) The disclosure, recantation, and denial of child abuse and neglect;
(v) Adult mental health issues; and
(vi) The rights to educational and developmental services recognized or established by state and federal law and strategies for appropriately addressing the individual needs of persons with disabilities;
(B) Physical and sexual abuse, exploitation, emotional abuse, endangerment, and neglect of children, and the impacts on children, including safety and treatment issues related to child abuse, neglect, and family violence;
(C) Family violence, its relevance to child abuse and neglect, and its effects on children and adult victims, including safety and treatment issues related to child abuse, neglect, and family violence;
(D) Substance abuse and its impact on children;
(E) Child development and its relevance to child abuse, neglect, and child custody and visitation arrangements;
(F) Juvenile dependency and child welfare systems, including dependency law;
(G) Interfamilial relationships and the psychological needs of children, including, but not limited to:
(i) The effect of removal or nonremoval of children from their homes and family members; and
(ii) The effect of terminating parental rights;
(H) The effect of poverty on parenting and familial relationships;
(I) Awareness of differing cultural values, including cross-generational cultural issues and local demographics;
(J) An overview of the special needs of dependent children, including their educational, medical, psychosocial, and mental health needs; and
(K) Available community resources and services for dealing with domestic and family violence, substance abuse, and housing, educational, medical, and mental health needs for families in the juvenile dependency system.
(Subd (e) amended effective January 1, 2014; previously amended effective January 1, 2005, January 1, 2007, and January 1, 2008.)
(f) Substitution for education or experience.
The court, on a case-by-case basis, may approve substitution of experience for the education, or education for the experience, required by (e)(1) and (e)(2).
(Subd (f) amended effective January 1, 2007.)
(g) Continuing education requirements for mediators.
In addition to the 40 hours of training required by (e)(3), all dependency mediators, mediation supervisors, program coordinators and directors, volunteers, interns, and paraprofessionals must participate in at least 12 hours per year of continuing instruction designed to enhance dependency mediation practice, skills, and techniques, including at least 4 hours specifically related to the issue of family violence.
(Subd (g) amended effective January 1, 2007.)
(h) Volunteers, interns, or paraprofessionals.
Dependency mediation programs may use volunteers, interns, or paraprofessionals as mediators, but only if they are supervised by a professional mediator who is qualified to act as a professional dependency mediator as described in (e). They must meet the training and continuing education requirements in (e)(3) and (g) unless they co-mediate with another professional who meets the requirements of this rule. They are exempt from meeting the education and experience requirements in (e)(1) and (e)(2).
(Subd (h) amended effective January 1, 2007.)
(i) Education and training providers.
Only education and training acquired from eligible providers meet the requirements of this rule. "Eligible providers" includes the Judicial Council and may include educational institutions, professional associations, professional continuing education groups, public or private for-profit or not-for-profit groups, and court-connected groups.
(1) Eligible providers must:
(A) Ensure that the training instructors or consultants delivering the education and training programs either meet the requirements of this rule or are experts in the subject matter;
(B) Monitor and evaluate the quality of courses, curricula, training, instructors, and consultants;
(C) Emphasize the importance of focusing dependency mediations on the health, safety, welfare, and best interest of the child;
(D) Develop a procedure to verify that participants complete the education and training program; and
(E) Distribute a certificate of completion to each person who has completed the training. The certificate must document the number of hours of training offered, the number of hours the person completed, the dates of the training, and the name of the training provider.
(2) Effective July 1, 2005, all education and training programs must be approved by Judicial Council staff in consultation with the Family and Juvenile Law Advisory Committee.
(Subd (i) amended effective January 1, 2016; adopted effective January 1, 2005; previously amended effective January 1, 2007.)
(j) Ethics/standards of conduct.
(1) Meet the standards of the applicable code of ethics for court employees.
(2) Maintain objectivity, provide information to and gather information from all parties, and be aware of and control their own biases.
(3) Protect the confidentiality of all parties, including the child. Mediators must not release information or make any recommendations about the case to the court or to any individual except as required by statute (for example, the requirement to make mandatory child abuse reports or reports to authorities regarding threats of harm or violence). Any limitations to confidentiality must be clearly explained to all mediation participants before any substantive issues are discussed in the mediation session.
(4) Maintain the confidential relationship between any family member or the child and his or her treating counselor, including the confidentiality of any psychological evaluations.
(5) Decline to provide legal advice.
(6) Consider the health, safety, welfare, and best interest of the child and the safety of all parties and other participants in all phases of the process and encourage the formulation of settlements that preserve these values.
(7) Operate within the limits of their training and experience and disclose any limitations or bias that would affect their ability to conduct the mediation.
(8) Not require the child to state a preference for placement.
(9) Disclose to the court, to any participant, and to the participant's attorney any conflicts of interest or dual relationships, and not accept any referral except by court order or the parties' stipulation. In the event of a conflict of interest, the mediator must suspend mediation and meet and confer in an effort to resolve the conflict of interest either to the satisfaction of all parties or according to local court rules. The court may order mediation to continue with another mediator or offer the parties an alternative method of resolving the issues in dispute.
(10) Not knowingly assist the parties in reaching an agreement that would be unenforceable for a reason such as fraud, duress, illegality, overreaching, absence of bargaining ability, or unconscionability.
(11) Protect the integrity of the mediation process by terminating the mediation when a party or participant has no genuine interest in resolving the dispute and is abusing the process.
(12) Terminate any session in which an issue of coercion, inability to participate, lack of intention to resolve the issues at hand, or physical or emotional abuse during the mediation session is involved.
(Subd (j) amended effective January 1, 2007; adopted as subd (i); previously relettered effective January 1, 2005.)
Rule 5.518 amended effective January 1, 2016; adopted as rule 1405.5 effective January 1, 2004; previously amended and renumbered as rule 5.518 effective January 1, 2007; previously amended effective January 1, 2005, January 1, 2008, and January 1, 2014.