Rule 16(j). Mediation of child custody and visitation disputes. (1) Definition of "Mediation". Mediation under this rule is the process by which a neutral mediator appointed by the court or agreed to by the parties assists the parties in reaching a mutually acceptable agreement as to issues of child custody and visitation. The role of the mediator is to aid the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties, and not the decisions of the mediator. (2) Matters Subject to Mediation. All domestic relations actions involving a controversy over custody or visitation of minor children at the pre-trial, trial and post-decree stages in the courts of this state shall be subject to mediation regarding issues of custody, visitation, or both. (3) Selection of Mediator. The court shall permit the parties to select a mediator from the list of registered mediators compiled by the Supreme Court and maintained by the Administrative Director of the Courts. If the parties are unable to select a mediator, the court shall appoint one. (4) Requirement to Attend Orientation. The district court of any judicial district may provide by local rule that all parties to any domestic relations case involving children, whether or not a trial or contested case has been scheduled, be required to attend such parent mediation orientation, unless excused by the court. (5) Authority of the Court. A court shall order mediation if, in the court's discretion, it finds that mediation is in the best interest of the children and it is not otherwise inappropriate under the facts of the particular case. (6) Mediation Registration - Qualifications of Mediator. (A) The Supreme Court will compile a list of registered mediators. For that purpose, the Administrative Director of the Courts shall gather from all applicants: (i) A certified transcript of the applicant's college work at an accredited university showing college credit for mediation training; (ii) An affidavit of compliance executed by the applicant attesting that the applicant has fulfilled the requirements for certification; (iii) A copy of the applicant's degree, license or certificate. (iv) Proof of completion of the mediation training activities required in parts (6)(B) and (6)(C) of this rule. (B) In order for a mediator to be placed on the list of registered mediators compiled by the Supreme Court, the mediator must have any one of the following professional credentials: (i) Membership in the Association for Conflict Resolution at the practitioner level or advanced practitioner level or other national organizations with equivalent standards for membership. (ii) The applicant is a member of one of the following: the Idaho judiciary; licensed member of the Idaho State Bar Association; licensed psychologist; licensed counselor; licensed master social worker; certified school counselor; or certified school psychologist, who, in addition to such membership, has attended a minimum of 40 hours of mediation training, 20 of which must be in the field of child custody mediation. (iii) The applicant possesses a bachelors degree together with a minimum of 60 hours of mediation training, 20 of which must be in the field of child custody mediation. (iv) At least 20 hours of the minimum mediation training program required in part (6)(B)(ii) of this rule and at least 40 hours of the minimum mediation training required in part (6)(B)(iii) of this rule shall consist of the following training components, at least 30 percent of which must be in the practicing of mediation skills: (a) Information gathering (intake; obtaining facts; screening issues); (b) Mediator relationship skills (neutrality; confidentiality; nonjudgmental); (c) Communication skills (active listening; reframing issues: clarifying); (d) Problem solving skills (identify problems, positions, needs, interests; brainstorm alternatives); (e) Conflict management skills (theories of conflict management; mediation models; reducing tensions; power imbalances); (f) Ethics (standards of practice; typical problems); (g) Professional skills (substantive knowledge areas; case management; drafting agreements). (v) The 20 hours' training in child custody mediation required in parts (6)(B)(ii) and (6)(B)(iii) of this rule shall be in the following areas: (a) Conflict resolution theory; (b) Psychological issues in separation, divorce, and family dynamics; (c) Domestic violence; (d) Issues and needs of children; (e) Mediation processes and techniques; (f) Family law, including custody and support. (C) In order for a person to remain on the list of registered mediators maintained by the Supreme Court, the mediator must complete a minimum of 20 hours of continuing training or education every two calendar years, and submit proof thereof to the Supreme Court. A calendar year is a period beginning January 1 and ending December 31 of any year, except that the calendar year of a child custody mediator registered after June 30 in any year begins on January 1 of the following year. Such continuing training or education shall be in one or more of the areas enumerated in part (6)(B) (v) of this rule. (D) The training required by parts (6)(B)(ii), (6)(B)(iii), (6)(B)(iv), (6)(B)(v), and (6)(B)(v), and (6)(C) of this rule shall be acquired by completing a program approved by an accredited college or university or by one of the following entities: Idaho Mediation Association, Association for Conflict Resolution, Association of Family and Conciliation Courts, the Idaho State Bar, or the Idaho Supreme Court. (E) The administrative district judge in each judicial district may, by administrative order, require mediators to comply with additional criteria beyond those stated in subsections (6)(B) and (6)(C) of this rule. (F) Persons approved as child custody mediators prior to the effective date of the amendment to this rule shall not be required to satisfy the training requirements of parts (6)(B)(ii), (6)(B)(iii) and (6)(B)(iv) of this rule, but shall be required to fulfill the additional education requirements of part (6)(C) of this rule. (7) Duties of Mediator. (A) The mediator has a duty to define and describe for the parties the process of mediation and its cost during the initial conference before the mediation conference begins. The description should include the following: (i) The difference between mediation and other forms of conflict resolution, including therapy and counseling; (ii) The circumstances under which the mediator will meet alone with either of the parties or with any other person; (iii) Any confidentiality of the mediation proceedings and any privilege against disclosure; (iv) The duties and responsibilities of the mediator and of the parties; (v) The fact that any agreement reached will be reached by mutual consent of the parties; (vi) The mediator shall advise the participants to seek independent legal counsel prior to resolving the issues and in conjunction with formalizing an agreement; (vii) The information necessary for defining the disputed issues. (B) The mediator has a duty to be impartial, and to advise all parties of any circumstances bearing on possible bias, prejudice or impartiality. (i) The parties shall have the right to have counsel review any resulting agreement before its submission to the court. (ii) Any agreement submitted to the court shall be subject to court review and approval. The court shall reject such agreement only if it is not in the best interests of the child or children involved. (8) Communications Between Mediator and the Court. (A) The mediator and the court shall maintain no contact or communication except that the mediator may, without comment or observation, report to the court: (i) That the parties are at an impasse; (ii) That the parties have reached an agreement. In such case, however, the agreement so reached shall be reduced to writing, signed by the parties and submitted to the court by one or both of the parties, if pro se; otherwise, through their attorneys, for the court's approval. (iii) That one or both of the parties have failed to attend the mediation proceeding; (iv) That meaningful mediation is ongoing; (v) That the mediator withdraws from mediation; (vi) The allegation or suspicion of domestic violence. (9) Contact Between Mediator and Attorneys. The mediator and the attorneys for the parties may communicate with one another in the following manner: (A) Any contacts between the attorneys and the mediator shall be either in writing or by conference call; (B) Attorneys are excluded from mediation conferences unless their presence is requested by the mediator. (10) Termination of Mediation - Status Report. The court or the mediator may terminate mediation proceedings if further progress toward a reasonable agreement is unlikely. The mediator shall notify the court when the mediation has been concluded. Notice of the status of the mediation process shall be submitted to the court within 28 days from the date of the initial order requiring mediation. (Adopted June 26, 1991, effective September 1, 1991; amended January 29, 1993, effective January 1, 1993; amended April 19, 1995, effective July 1, 1995; amended March 31, 1998, effective July 1, 1998;amended March 9, 1999, effective July 1, 1999; amended July 29, 2003, effective August 1, 2003.)