Mediation in Kansas: A Comprehensive Overview
Mediation
•
The goal of mediation is not to determine who
is write or wrong
•
Purpose is to explore solutions
•
The mediator makes the final decision
•
If no agreement is reached the parties can
return to court
Statutory Definition
Chapter 5 – Arbitration & Award
•
Mediation is defined by K.S.A. 5-502(f) as the
intervention into a dispute by a third party
who:
–
Has no decision making authority;
–
Is impartial to the issues being discussed;
–
Assists the parties in defining the issues in
dispute;
–
Facilitates communication between the parties;
and
–
Assists the parties in reaching a resolution.
Dispute Resolution Process
•
Kansas Dispute Resolution Manual provides
guidance regarding various dispute resolution
processes
–
http://www.kscourts.org/pdf/adr/disresmanual.p
df
Dispute Resolution Manual
•
Defines various types of mediation
–
Court-annexed vs. Private Mediation
–
Civil Mediation
–
Domestic Mediation
•
Governed by K.S.A. 23-601, et seq.
–
Facilitated by Mediation
–
Evaluative Mediation
–
Transformative Mediation
Rule 901
Court Rules Relating to Mediation
•
Describes mediation process
–
Explains circumstances in which an attorney may
act as a mediator
–
Must inform parties of role and receive consent in
writing
–
Must define legal issues in presence of all parties
–
Must advise parties to seek independent legal
advice prior to executing settlement agreement
Rule 901
Court Rules Relating to Mediation
–
Cannot handle mediation pertaining to a matter in
which mediator has represented a party
–
Cannot represent one party against the other in a
matter that is the subject of mediation
•
May represent a party on an unrelated matter after
mediation is concluded
Rule 901
Court Rules Relating to Mediation
–
No attorney client privilege
–
Shall withdraw if any party so requests, or if
conditions are not satisfied
–
Attorney involved in mediation of family disputes
must also comply with Kansas Standards of
Practice for Lawyer Mediators in Family Disputes
Rule 902
Qualifications
•
Sets qualifications for mediators referred by
state courts
•
No standards or qualifications imposed on any
person chosen and agreed to by the parties
Rule 902
Qualifications
•
To be approved as a mediator, applicant must:
–
Complete required training
–
Agree to follow ethical standards of rule 9003
–
Co-mediate with or be supervised for three cases
during the first year of approved mediation
practice
–
Comply with Rule 904 (continuing education)
Rule 902
Qualifications
•
Be of good moral character and mentally and
emotionally fit to engage in the practice of
mediation
•
Must have participated in 16 hours of core
mediation training
–
Must have additional training for:
•
Child custody or parenting classes
•
Parent/adolescent disputes
Rule 903
Ethical Standards
–
Self-Determination - A mediator shall recognize
mediation is based on the principle of self-
determination by the parties.
–
Impartiality – mediation shall be conducted in an
impartial manner
–
Conflicts of Interest – All actual and potential conflicts
of interest reasonably known to the mediator must be
disclosed
–
Competence – A mediator must have necessary
qualifications to satisfy the reasonable expectations of
the parties
Rule 903
Ethical Standards
–
Confidentiality – A mediator shall maintain the
reasonable expectations of the parties with regard
to confidentiality
–
Quality of Process – A mediator shall conduct the
mediation fairly, diligently, and in a manner
consistent with the principle of self-determination
by the parties
–
Advertising and Solicitation – A mediator shall be
truthful in advertising and refrain from promises
and guarantees of results
Rule 903
Ethical Standards
–
Fees – A mediator shall fully disclose and explain
the basis of compensation, fees and charges to
the parties
–
Obligations to the Mediation Practice – Mediators
have a duty to improve the practice of Mediation
Rule 904
Continuing Education Requirements
–
Shall earn 6 credit hours of approved mediation
education each calendar year
–
Training years begin January 1 and end December 31
–
All programs for continuing mediator education credit
shall be approved by the director of dispute resolution
–
Waivers or extensions of time to complete continuing
education may be granted by the director of dispute
resolution due to hardship, disability or other good
cause
Mediation in Kansas is a process where a neutral third party assists parties in resolving disputes without assigning blame. This overview covers the purpose of mediation, statutory definitions, dispute resolution processes, types of mediation, and court rules related to mediation in Kansas. Details on mediator roles, responsibilities, and ethical considerations are also provided.
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Presentation Transcript
Mediation The goal of mediation is not to determine who is write or wrong Purpose is to explore solutions The mediator makes the final decision If no agreement is reached the parties can return to court
Statutory Definition Chapter 5 Arbitration & Award Mediation is defined by K.S.A. 5-502(f) as the intervention into a dispute by a third party who: Has no decision making authority; Is impartial to the issues being discussed; Assists the parties in defining the issues in dispute; Facilitates communication between the parties; and Assists the parties in reaching a resolution.
Dispute Resolution Process Kansas Dispute Resolution Manual provides guidance regarding various dispute resolution processes http://www.kscourts.org/pdf/adr/disresmanual.p df
Dispute Resolution Manual Defines various types of mediation Court-annexed vs. Private Mediation Civil Mediation Domestic Mediation Governed by K.S.A. 23-601, et seq. Facilitated by Mediation Evaluative Mediation Transformative Mediation
Rule 901 Court Rules Relating to Mediation Describes mediation process Explains circumstances in which an attorney may act as a mediator Must inform parties of role and receive consent in writing Must define legal issues in presence of all parties Must advise parties to seek independent legal advice prior to executing settlement agreement
Rule 901 Court Rules Relating to Mediation Cannot handle mediation pertaining to a matter in which mediator has represented a party Cannot represent one party against the other in a matter that is the subject of mediation May represent a party on an unrelated matter after mediation is concluded
Rule 901 Court Rules Relating to Mediation No attorney client privilege Shall withdraw if any party so requests, or if conditions are not satisfied Attorney involved in mediation of family disputes must also comply with Kansas Standards of Practice for Lawyer Mediators in Family Disputes
Rule 902 Qualifications Sets qualifications for mediators referred by state courts No standards or qualifications imposed on any person chosen and agreed to by the parties
Rule 902 Qualifications To be approved as a mediator, applicant must: Complete required training Agree to follow ethical standards of rule 9003 Co-mediate with or be supervised for three cases during the first year of approved mediation practice Comply with Rule 904 (continuing education)
Rule 902 Qualifications Be of good moral character and mentally and emotionally fit to engage in the practice of mediation Must have participated in 16 hours of core mediation training Must have additional training for: Child custody or parenting classes Parent/adolescent disputes
Rule 903 Ethical Standards Self-Determination - A mediator shall recognize mediation is based on the principle of self- determination by the parties. Impartiality mediation shall be conducted in an impartial manner Conflicts of Interest All actual and potential conflicts of interest reasonably known to the mediator must be disclosed Competence A mediator must have necessary qualifications to satisfy the reasonable expectations of the parties
Rule 903 Ethical Standards Confidentiality A mediator shall maintain the reasonable expectations of the parties with regard to confidentiality Quality of Process A mediator shall conduct the mediation fairly, diligently, and in a manner consistent with the principle of self-determination by the parties Advertising and Solicitation A mediator shall be truthful in advertising and refrain from promises and guarantees of results
Rule 903 Ethical Standards Fees A mediator shall fully disclose and explain the basis of compensation, fees and charges to the parties Obligations to the Mediation Practice Mediators have a duty to improve the practice of Mediation
Rule 904 Continuing Education Requirements Shall earn 6 credit hours of approved mediation education each calendar year Training years begin January 1 and end December 31 All programs for continuing mediator education credit shall be approved by the director of dispute resolution Waivers or extensions of time to complete continuing education may be granted by the director of dispute resolution due to hardship, disability or other good cause
