The ABA and the AFCC (Association of Family and Conciliation Courts) have jointly released the 2025 Revision of the Model Standards for Family and Divorce Mediation. This document replaces the Model Standards adopted in 2000, which have withstood the test of time. Notable in the Revised Standards are some additional topics, such as online dispute resolution and mediating with self-represented parties. The Revision also provides more guidance on dealing with cases where domestic abuse may be involved – including using the term “domestic abuse” instead of “domestic violence,” and adding a standard on “child maltreatment.”
Of special note to Michigan mediators are the ways in which the Revised Standards supplement the Michigan Standards of Conduct for Mediators. Our Standards, adopted in 2012, were based in part on the 2000 Model Standards. I had the privilege of serving on the task force that developed the Standards for Michigan; one of our innovations was to merge the standards for general civil mediators and the standards for domestic relations mediators into one set of standards designed to cover the whole field of mediation. The Michigan Standards do not go into as much detail regarding domestic relations (DR) mediation, so Michigan mediators are well-advised to consult the Revised Model Standards when facing particular issues that arise in DR mediation.
The Revised Model Standards are longer than the 2000 version (and longer than Michigan’s Standards) both because they address some new topics, and because they go into more detail on the topics they address. For example, the need to ensure party self-determination even where parties are unrepresented, and distinguishing this from informed decision-making, receives attention. There is now a separate standard entitled “Technology” that was not mentioned in the 2000 version. (Standard XI) Mediator competence is now defined to include ability to conduct online mediation, and to use technology and understand data security. (Standard XII.A.10 and 11)
One topic that has long challenged mediators is the ethical obligation to assess party capacity to mediate. Mediators have argued that they are not mental health professionals and lack insight into fully assessing party capacity. The Revised Standards include a standard entitled, “Barriers to Participation and Process Modification” to provide more guidance here (Standard IV). While still requiring a mediator to examine party capacity, the inquiry is framed as exploring “barriers to participation,” and effective safeguards and process modifications “tailored to address barriers to meaningful participation in mediation.” The reasons for terminating a mediation no longer include a participant’s “physical or mental condition.” (Standard XI.A.)
The Revised Standards are a welcome addition to the practice of mediation in the U.S.
“We now have neuroscience support for the ancient teachings of Jesus …”
Brain studies are revealing both the negative effects of revenge as well as the positive effects of forgiveness, according to a recent article by James Kimmel, Jr., that appeared in the Wall Street Journal last week, “This Is Your Brain on Revenge.” The author expanded on these thoughts in a podcast on Hidden Brain. Neuroscience research is using scanning technology to study what happens inside the brain when we seek revenge, as well as when we forgive.
He says that a brain bent on revenge “looks very much like your brain on drugs.” In one study, participants were given the opportunity to retaliate against players who had betrayed them in a game; MRIs of these participants revealed activation of the part of the brain involved in habit formation and addiction. In another study, participants who chose to retaliate for noise blasts had MRIs that showed activation of the part of the brain most implicated in pleasure and craving.
Forgiveness shows up in the brain in other ways. In a brain-scan study done at UCLA, “participants who chose to forgive rather than retaliate reduced activity in their brains’ pain network and rewards circuitry, and increased activity in their self-control circuitry.” The study’s title notes, “disregarding unfairness activates self-control circuitry.”
Mr. Kimmel concludes, “This suggests that forgiveness is a freely available wonder drug that reduces – rather than merely covering up – the pain of grievances, eliminates revenge craving and bolsters executive function.”
Christians have known this for centuries. We forgive because Jesus commanded us to forgive – after setting the example, by forgiving us (as captured in the familiar line from the Lord’s Prayer, “Forgive us our trespasses as we forgive those who trespass against us.” Yet we appreciate the positive personal effects that flow from forgiveness – release, peace, relief, etc. We know that forgiveness is good for us, even if it can be supremely difficult to do. One could almost say that our Creator hard-wired us to forgive. Now there’s research to back that up.
February 13, 2025 – 4:11 pm
California has adopted a law authorizing the California State Bar to certify dispute resolution providers. The Alternative Dispute Resolution Certification Program requires neutrals to comply with ethics and disclosure standards, and to provide a complaint procedure, in order to be certified. The author of the bill, Senate Judiciary Committee Chair Tom Umberg, says this law is especially aimed at neutrals who make decisions, such as arbitrators, but the statute covers “alternative dispute resolution firms, providers, and practitioners.” CA Bus & Prof Code § 6173(a)(1).
The certification is voluntary. It is available to anyone, whether or not they are active members of the State Bar. It offers different levels or tiers for certification, and permits the State Bar to charge an annual fee for the certification.
Presumably this certification program is designed to prevent system abuses like those perpetrated by Attorney Tom Girardi, who conspired with neutrals to bilk his clients out of millions of dollars due them through mediations and arbitrations. But the State Bar was one reason Girardi was able to get away with his theft for so many years, because Bar staff turned a blind eye to client complaints. Apparently the Legislature believes the State Bar has learned its lesson and can now be trusted to certify neutrals.
Oftentimes a “certification” warrants that the person has completed certain educational or vocational requirements, and/or has a certain amount of experience in the particular field. The California ADR certification makes no such representation. As one practitioner noted, this program codifies procedures most California dispute resolution providers already follow.
January 31, 2025 – 12:18 pm
News Group Newspapers issued a public apology this week to Prince Harry for invading his privacy for years by hacking his phone and publishing private information about him. Prince Harry had sued News Group, which owns several British tabloids, and the apology was part of a settlement on the eve of trial.
The apology acknowledges The Sun newspaper’s “serious intrusion” into the Prince’s private life between 1996 and 2011, “including incidents of unlawful activities.” It also apologizes for News of the World’s “phone hacking, surveillance and misuse of private information.”
An essential element of an effective apology is to take responsibility; this apology does that. Acknowledgment of the specific harm done is also important, and this apology does that well, noting the intrusion “into his private life as well as the private life of Diana, Princess of Wales, his late mother, in particular during his younger years.” It also apologizes for the damage inflicted on his relationships.
Restitution is another essential element of a good apology; the News Group is paying Prince Harry “substantial damages.”
Two other elements of a good apology are weak here. One is regret or remorse. News Group might argue that this is implied in its use of the word “apologizes,” but this is typically done by use of the word “sorry.” That is missing. The recipient of an apology usually would also like to hear what the offender will do to avoid offending again. Will the payout and negative publicity be sufficient to reform NGN’s behavior?
Also notable is what is not in the apology, that could’ve weakened it. There’s no weak or indefinite language, like, “If we did anything to hurt you…” There are no excuses. There is no blaming (unless one wants to read that into the mention of “private investigators working for The Sun”).
This is a public apology by an entity; both of those circumstances make apologies more delicate. Given that, this is a pretty good apology.
December 3, 2024 – 2:19 pm
Last week I wrote about the apology from Salem Media to Mr. Mark Andrews for defaming him as an illegal voter in a film it distributed. Yesterday, the creator of the film, Dinesh D’Souza, issued a statement of apology to Mr. Andrews.
In the film, “2000 Mules,” Mr. Andrews is depicted as a “mule” who harvested fake ballots. In his statement, Mr. D’Souza explained that new information had recently come to light showing that the surveillance videos he used in the film, including the footage that depicted Mr. Andrews, were based on inaccurate information; and that, had he known that, he would’ve made the film differently. (The State of Georgia investigated and determined that Mr. Andrews was voting legally and hadn’t done anything wrong.)
This statement is not really an apology. It’s at best an acknowledgement of wrong, and comes across more like an excuse/explanation. It’s good that Mr. D’Souza is publicly acknowledging that he would’ve done things differently if he had had accurate information. But he doesn’t call it a “mistake,” and he doesn’t take responsibility for the “inaccurate information.” Instead, Mr. D’Souza blames others for providing him with the information, as if he had no responsibility himself to verify it before basing the film on that misinformation. Instead of acknowledging the harm he caused Mr. Andrews, which Mr. Andrews said included death threats to him and his family, the statement says he is “sorry for any harm he believes he and his family has [sic] suffered.” In other words, he doesn’t believe Mr. Andrews was harmed.
Strangely, he says he still has confidence in the premise of the film, that there was systematic election fraud in the presidential election of 2020. This undermines his assertion that the new information led to a new understanding which prompted the apology. If he really wanted to apologize sincerely, he would’ve omitted this paragraph.
Mr. D’Souza says he’s not apologizing in hopes of settling the lawsuit that Mr. Andrews has filed against him, but rather because “it is the right thing to do.”
