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, the FMC recognised a need 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, the FMC agreed 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 seeks 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 recognises 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.
To apply these principles, it is a requirement to complete a good standing declaration in order to register with the FMC. This is tested principally at first entry into the profession, i.e. at the time of application to foundation courses. This is the responsibility of the FMSB, as the regulatory body, not the training provider. Assessment against these principles will then be made regularly at each annual registration, through self-certification.
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.
Criteria & Process – Good Standing Requirement
Good Standing is be evidenced by the absence of or satisfactory explanations for any offences or penalties specified below:
- 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, whether on a temporary or permanent basis;
- 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 must 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 is 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:
- By providing evidence of Good Standing from the regulatory body of a profession which has been recognised by the FMC. This includes appropriately registered solicitors, barristers, social workers, FCA approved persons, doctors, dentists, nurses and midwives.
- 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 (see below for the relevant process in these circumstances), 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.
Process for Mediators Already on the FMC Register
Mediators who are already registered with the FMC are asked to confirm, at annual renewal of registration, whether any of the above circumstances apply. If they reply to say none of the above circumstances apply, and are supported by their PPC, 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.
Process if a mediator declares an conviction or other circumstance under the Good Standing Declaration
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
- Any other factors it considers relevant.
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.
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.
