Divorce Mediation: Facilitating A Resolution
Volume 3, Number 2, Winter 2002
John and Mary are successful clinical social workers with a thriving practice in couples therapy. They have received additional training in divorce mediation and are certified in this area of practice. Recently, they were approached by an attorney in their city to join an expanding divorce mediation service. The attorney and his staff have an outstanding reputation in the community, offering divorce mediation services of the highest quality.
John was concerned about the risks involved in working with other professionals in the attorney's office setting. Could he and Mary be sued if the accountant gave questionable financial advice or the attorney gave inappropriate legal advice? Would their malpractice insurance cover them? Could they have an ethics claim filed against them over accounting or legal advice given in the divorce mediation process?
Divorce mediation services are common today and can be found in many communities. They are also offered by a diverse group of professionals including social workers. Malpractice insurance carriers have risen to the challenge of insuring professionals who work with other professionals in a mediation setting.
Various professions carry profession specific liability policies to cover their unique risks. Insurance policies will not cover claims related to services performed outside the scope of practice of the insured. For example, a social worker involved in mediation work would be covered for a claim alleging negligent mediation or substandard services. A claim against the social worker alleging malpractice in the area of legal or financial advice would not be covered.
The NASW Insurance Trust's social worker professional liability insurance will respond to a social work malpractice allegation by providing: (1) any amount necessary for a full legal defense and, in addition (2) insurance to pay for the settlement or court award. If the social work mediator is sued for legal or financial advice, which are not covered by a social work policy, the social work insurance would not respond at all. Social workers who work in a divorce mediation practice should be familiar with the role of each staff member and the services each provides. During the initial client interview, it is essential to provide a written description of the role of each professional involved in the case. Social workers should also avoid any appearance of being an advocate for one party or the other. Divorce mediators are neutral third parties who assist disputing parties, clarify issues, and help couples through facilitation to resolve their differences through alternative resolutions rather than litigation.
Confidentiality issues can pose problems if not worked out before the mediation process begins. It is best to provide a written statement regarding the rights of the clients. See Prudent Practice for sample forms.
The National Association of Social Workers offers the following products to assist social workers who practice in the area of divorce mediation: "The NASW Standards of Practice for Social Work Mediators" and "Social Workers and Alternative Dispute Resolution: General Counsel Law Note". Social workers should also adhere to the NASW Code of Ethics which is applicable to divorce mediation services.
These products are available through the NASW Information Center at (202) 408-8600.
Margaret A. Bogie, MHSA, Insurance Consultant, is a contributing writer and Mirean Coleman, LICSW, Senior Staff Associate at NASW, is a contributing editor to this series for the NASW Insurance Trust. The names and case examples used in Practice Pointers articles are completely fictitious, and any resemblance to persons living or dead is purely coincidental. Questions about this article should be directed to NASW via blawrenc@naswdc.org.
For professional liability insurance,
call APA at (800) 421-6694
