Consultation: the introduction of a good standing requirement for family mediators January 2021
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Consultation – the introduction of a good standing requirement for family mediators
Consultation: the introduction of a good standing requirement for
family mediators
January 2021
The Family Mediation Council (FMC) maintains a register of mediators who meet
agreed professional standards for family mediators. It has delegated the operation of
this register to the Family Mediation Standards Board (FMSB). The FMSB has
identified a gap in the Standards Framework, which, while it specifies training, skills
and abilities, does not take into account the mediator’s suitability in terms of
character. The FMSB has therefore recommended that the FMC that introduces a
good standing requirement for all mediators currently on the FMC Register and for
new entrants to the profession.
The proposed policy is attached at Appendix 1 and the proposed process is attached
Appendix 2.
If adopted, this policy and process would mean that mediators already on the
register would have to complete the good standing test once, and then confirm at
annual registration whether there have been any changes to this.
The FMSB has proposed the good standing requirement as it believes it is
necessary to protect the public and maintain the integrity of the FMC Register. It is
important however that the process doesn’t create an unnecessarily heavy burden
for mediators. In developing the proposed policy and process, the FMSB has looked
to other professions, and considered the practical implications.
The FMSB would welcome the views of registered family mediators and others with
an interest in the family mediation profession on whether the proposed policy and
process will achieve what it sets out to, without being unduly burdensome to the
mediation community.
Consultation responses should be sent to info@familymediationcouncil.org.uk by
22nd February 2021.
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Appendix 1
Draft FMC Good Standing Policy
The FMC recognises that fitness to practise requires not only the necessary skills but
also appropriate behaviours and attitudes towards clients. While these are described
functionally in the Code of Practice, there is a need for a policy statement on how to
consider issues concerning individual mediators or would-be mediators that may
affect their practice but lie outside the direct purview of strictly professional
considerations.
Drawing on the work of regulatory bodies in other fields we propose four principles to
guide decision-making over the suitability of individuals as family mediators. These
are that practitioners should not act:
(i) in such a way that puts at risk the health, safety or wellbeing of a client;
(ii) in such a way that his/her registration would undermine public confidence
in the profession’s capability to carry out its proper functions;
(iii) in such a way that indicates an unwillingness to act in accordance with the
standards of the profession;
(iv) in a dishonest manner.
As these are general principles that may be open to interpretation through individual
judgement, which could be viewed as discriminatory, for application in practice they
require some more specific criteria and a rigorous process to guide decisions. The
starting point for the criteria needs to be factual evidence – most significantly of
proven offences – and this is essentially historical in nature. As past behaviour is not
necessarily indicative of likely future behaviour, the criteria cannot be applied
automatically, so the process should seek to identify patterns of behaviour that may
reasonably be likely to continue and have a negative impact on a person’s work as a
family mediator.
The application of these principles needs also to be proportionate and not
inappropriately restrictive. Many family mediators have previous or parallel
professions – for instance, the law, social work – in which similar principles apply.
The FMC intends to recognise this: where mediators have demonstrated good
standing through other professional systems it will rely on confirmation of this and
not put mediators through double jeopardy. As with other professions, too, decisions
about good standing may not be binary; mediators may be permitted to train and
practice with conditions or under observation.
We propose that these principles should be applied as a requirement for registration,
and should be tested principally at first entry into the profession, i.e. at the time of
application to foundation courses. This would be the responsibility of the FMSB, as
the regulatory body, not the training provider. Assessment against these principles
should be made regularly at each annual registration, through self-certification.
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For this approach to work the FMSB will need to develop a process to allow the good
standing test to be completed before registering on a training course, and amend the
Standards Framework (following consultation with Foundation Training Providers), to
ensure that delegates are accepted on to Foundation Training Courses only after
good standing has been accepted. It would be unethical for training bodies to accept
onto their courses individuals who they know will not achieve registration. While on
foundation courses individuals would have the status of “student registration” for
which no fee would be charged.
Once accepted into the profession it is the responsibility of each mediator to keep
his/her PPC, MO and the FMSB informed of any factors that may impinge on these
requirements, and non-disclosure of such factors will be considered a breach of the
Code of Practice. Through their regular interactions with their consultees PPCs are
expected to be alert to any incidents that potentially cast doubt on their adherence to
these requirements.
There is bound to be the need to exercise great care and scrupulous confidentiality
over the application of these principles, and in particular to recognise that behaviour
can be modified, so past actions and their consequences should not be absolute
barriers to practice. To help in the application of these principles (eg. around
questions of previous convictions) guidance notes – but not rules – will be drawn up
and kept under review in light of experience.
The FMSB will take responsibility for overseeing the fair application of the good
standing test.
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Appendix 2
Proposed Criteria & Process - Good Standing Requirement
Good Standing will be evidenced by the absence of or satisfactory explanations for
any offences or penalties specified below, through a questionnaire which asks
whether the individual:
• Has been convicted in the United Kingdom of any offence or been convicted
elsewhere of any offence which, if committed in any part of the United
Kingdom, would constitute an offence (unless spent);
• Has been disqualified under the Company Directors Disqualification Act 1986
(CDDA);
• Has been erased, removed or struck off a register of professionals;
• Has had any disciplinary sanction imposed by a Family Mediation Council
Membership Organisation;
• Is the subject of a bankruptcy restrictions order or an interim bankruptcy
restrictions order in England and Wales or an order to like effect made
elsewhere;
• Has been refused professional indemnity insurance;
• Any ongoing proceedings that may lead to one of the consequences set out
above.
In addition, mediators will be offered the opportunity to disclose any other
circumstances that they believe may be relevant to their Good Standing as a family
mediator, for instance if they have been responsible for, been privy to, contributed to
or facilitated any serious misconduct or mismanagement (whether unlawful or not) in
the course of carrying on a professional activity, or discharging any functions relating
to any office or employment.
Process for people joining the FMC Register (new mediators, mediators seeking
to enter the profession with training or accreditation from another jurisdiction or
mediators who were formerly registered, have taken a break from practising
mediation and now wish to return to the register)
In order to ensure that people who might be declined registration with the FMC do
not train as mediators with unwarranted expectations, the FMSB will require that
checks of Good Standing are made at the very outset. Confirmation of Good
Standing before training will result in Student Registration, which will be free. The
FMSB will require all prospective mediators to obtain Student Registration before
carrying out mediation training.
A system will be established that co-ordinates between course and student
registration applications so that training providers can check the registration status of
course delegates before finalising their acceptance.
There are two ways in which Good Standing confirmation can be obtained:
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1. By providing evidence of Good Standing from the regulatory body of a profession
which has been recognised by the FMC (NB A full list will be maintained on the
FMC website).
2. By making a direct application to the FMSB, using the standard questionnaire
(see above).
If the applicant answers the questionnaire to say none of the circumstances set
out apply to them, or if the FMSB exercises discretion to allow a person to whom
those circumstances do apply to register, then the applicant for initial training will
be granted ‘Student Registration’ status. If the applicant is a returning mediator
or one entering from another jurisdiction, (s)he will be recognised with the
appropriate status.
If a person says that any of the circumstances covered in the questionnaire
apply, this is not an absolute bar to entry to the profession, as each person’s
circumstances will be different. Applicants will be required to disclose details and
make a statement about whether they think their past conduct would have an
impact on their mediation work.
This application will then be considered by an FMSB appointed panel, which will
have discretion to accept or not accept the application. The panel will consist of
two FMSB lay members and a third independent lay person who does not sit on
the FMSB.
In considering the application, the FMSB will consider whether there are patterns
of behaviour that may reasonably be likely to continue, and may have regard to:
• The relevance of the offence or penalty to family mediation work
• The seriousness and circumstances of the offence or penalty including whether
this posed a threat to the health, safety or welfare of others
• Whether the applicant has a pattern of offending or type of conduct for which
the penalty was applied, whether the applicant’s situation has changed since
the offence was committed/penalty imposed, and the extent to which the
conduct or behaviour is counterbalanced by testimonials and character
references
• Whether the offence or penalty indicates a blatant disregard for the law or
system of regulation and the extent to which the applicant co-operated with
regulatory authorities
• The extent to which the applicant disclosed (or failed to disclose) the existence
of the conduct or penalty during the application process
• Whether the conduct/penalty involves discrimination
• Information obtained other than from the applicant, for example disciplinary
records of other organisations
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• Any other factors it considers relevant.
Initial Process for Mediators Already on the FMC Register
Mediators who are already registered with the FMC should also be sent the initial
questionnaire. If they reply to say none of the above circumstances apply, with PPC
countersignature, they will remain on the register. If mediators declare that any of the
listed circumstances apply, the FMC will consider whether they should remain on the
register. The FMSB will use the guidance set out above to help it reach its decision. In
addition, the FMSB will consider the mediator’s behaviour and any complaints records
held by MOs whilst the mediator has been on the register.
The FMSB will have the ability to suspend the mediator’s registration status or to
impose restrictions on that status if there are any ongoing criminal matters which relate
to the mediator’s practice of family mediation.
Maintaining Good Standing Requirements
For registered mediators, at annual renewal of registration mediators of Good
Standing will be asked to confirm that nothing has occurred that could affect this
status; a tick box will be added to the standard form, which is countersigned by
PPCs.
For first-time registrants (ie. when mediators apply to become registered as working
towards accreditation or return to practice), they will be asked again if any of the
prescribed circumstances exist. If mediators’ circumstances have changed, they will
be asked to declare these and go through the Good Standing process. Otherwise, a
simple tick-box can confirm that nothing has changed and no new circumstances
apply.
The FMSB will have the ability to suspend the mediator’s registration status or to
impose restrictions on that status if there are any ongoing criminal matters which relate
to the mediator’s practice of family mediation.
Standards Amendments
The Standards Framework should be amended to say that registered students and
mediators must have met the good standing requirements, and require disclosure if
circumstances change. The FMSB should ensure the process allows for applications
to be considered at any time (for example from a mediator on the register who is
convicted of a crime).
Failure to Meet Good Standing Requirements and Re-applications
If the FMSB has determined that a person has failed to meet the good standing
requirements that person will not be entitled to become or remain registered. A
person may re-apply for registration if their circumstances change and the good
standing requirements will be checked again.
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The FMSB will have the ability to make a mediator’s registration conditional. Careful
consideration needs to be given to how these arrangements operate.
The FMSB will keep a log of decisions to assist it in making consistent decisions.
Administrative Processes
When a mediator/applicant’s declaration is entirely in order this will be processed at
an administrative level. For people who make declarations, this will be decided by an
FMSB panel convened specifically for this purpose. Cases will also be passed to the
panel if the FMSB has any evidence that a declaration is false.
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