Family mediation today

8 September 2006

Mediation, not unnecessary litigation, should be the mechanism of choice in family disputes, says Linda Glees.

Family mediation has had a varied career path since the first service was launched thirty years ago in 1976 in Bristol. The pioneer services were of key significance in developing a body of practical techniques and standards, but were small in scale.

Over the next three decades, three developments greatly expanded the reach of mediation: in 1986, a group of family lawyers and therapists founded the Family Mediators’ Association (FMA) which took mediation into private practice to enable clients to reach out of court settlements. In 1996 the FMA with other leading mediation organisations voluntarily combined resources to establish an overall regulatory body, the UK College of Family Mediation. Finally, in 1997 public funding pilots were launched by the LSC followed by full contracting in 2002, leading to 14,128 publicly funded mediations in the year 2005-6.

This brings us to the current scene: where, amidst constant family law reform and change, family mediation is beginning to look like a tough long-term survivor. Judicial and political support is strong, because mediation has come to be seen as a robust and infinitely flexible alternative process, not as merely the ‘beautiful idea’ it may have appeared to early sceptics. Mediation starts with the needs of the whole family, which could never be dealt with by any court process no matter how well-funded the court system or however wise the judges. A court order can establish residence and a contact timetable. But how could it help parents to decide how to communicate and deal with step-parent and grandparental issues; how to make key decisions such as choice of schools; how to discipline and encourage children; and how to establish a decision- making framework for everyday decisions such as whether to allow a Saturday job, whether to allow tattoos and body-piercing, and all the other well-known teenage dilemmas. Only mediators have the time and training to help, for example, young parents who may not have needed to consider such matters look into their family’s future. All of this would be done in confidence and after full open financial disclosure.

Flexibility is the core virtue of family mediation : no other process could move between a day-long financial negotiation involving divorcing business partners to a series of meetings with unmarried young parents who have to work out from scratch a mutual approach to parenting and acquiring life skills. Which other process would expect its mediators to study complex company accounts prior to a financial session, and then be able, if additionally trained, talk in confidence with a bewildered child? Mediators can do all of this with an immediacy derived from the model. FMA mediators are trained primarily to work in teams, a lawyer mediator working with a family mediator from a therapeutic background. This is an extremely robust model for difficult cases which combine a number of features: typically cases where there are both children and financial issues along with a high degree of inter-marital conflict. The couple are supported by a range of expertise and the mediators themselves are supported by their colleague in cases which can prove disturbing. The FMA also encourages its mediators to filter out the straightforward cases, such as financial cases where no children are involved and there is little acrimony, to work on these as sole mediators.

In either model the mediator needs the support of the referring solicitors. This has long been recognised by the Family Law Committee of the Law Society which set out in its Family Law Protocol the requirement for solicitors to explain and support the mediation process when appropriate. In the past, market forces may unfortunately have led some family lawyers to fear the competition from mediation. However mediators, while offering neutral legal information, also strongly recommend individual legal advice for both clients and support the client’s relationship with his or her solicitor. In a regrettable minority of cases this support is not reciprocated and solicitors wishing to sustain a reputation as a ‘fighter’ can try to attack a proposed settlement. In so doing they expose their client and the whole family to a court process which is universally agreed to be expensive and emotionally destructive. Mediators know, as most solicitors also know, that there is life after divorce and a court battle will almost certainly end any prospect of constructive joint parenting thereafter. Fortunately, the general position is that the great majority of family lawyers have far more work than they can realistically deal with and therefore welcome skilled assistance in the form of a parallel process. In addition, the withdrawal of many firms from public funding has led to a large numbers of people acting in person through their divorce and it is with this population that mediation can look for further expansion, provided a well-informed and efficient referral system from our county courts can be established.

Mediation is well-tested, confident and flexible. We expect these strengths to become all the more apparent in new situations in the future, whether working within courts, with CAFCASS, offering an option for parenting activity orders, re-negotiating old court orders or co-habitation contracts, or going further into the community to schools, for example, to show how mediation can work.

Linda Glees, Chair of the Family Mediators’ Association.

About the Family Mediator's Association

The FMA continues to work closely alongside civil and commercial mediation experts ADR Group, to deliver one of the most established family mediation foundation training programmes in the UK. ADR Group however has progressed one step further in the realms of advanced mediator training, by developing a hybrid training model, which combines expertise from both the family and commercial sectors. The conversion programme offers previously trained family mediators the opportunity to integrate their honed family mediation skills into the civil arena, qualifying family mediators to work in a wide and general range of civil and commercial disputes. Acquiring knowledge in this area has proved to be invaluable as many family mediators are encountering increasingly complex cases, which cross over into commercial boundaries. Inheritance or family disputes demonstrate clear examples, where both skill sets may be required to deal with the intricacy of the dispute in hand.

For further information contact

ADR Group on 0117 9467 180 or visit www.adrgroup.co.uk

Family Mediators’ Association on 0808 200 0033 or visit www.thefma.co.uk