Please note, in this article I often use the term ‘family mediation uk’ rather than just ‘family mediation’ to emphasise I am only aware of and talking about its practice in the UK rather than elsewhere.
As a mediator who has worked in a range of different areas of dispute including workplace disputes, neighbour disputes, group disputes, complaints work including NHS and student complaints and others, but only a smattering of work with separating couples I continually look in on the family mediation UK ‘set up’ with bafflement. There has always been a sense of estrangement between its approach and that of most other fields of mediation even from the time I first started mediating when it had an unexplained requirement that Family Mediators were all supposed to have degree level education. The relevance of this requirement to me was lost as I was at the time working with various insightful and skilful mediators who had not gone to university but who had ample listening and questioning and facilitation skills and were able to effectively bring them to bear in the dispute situations they were working in.
But the divergence has continued from that time, 20 years ago. In no other area of mediation for example is there the equivalent of a ‘MIAM’ – a Mediation Information and Assessment Meeting – which separating couples compulsorily have to attend prior to any application to take their separation to court. The intended aim of this additional step that separating couples now have to take in the legal process of divorce or separation is to encourage the use of mediation and to reduce the demands on the legal system. Instead it has simply become, in most cases, one more level of bureaucracy for couples to go through within the legal process that already existed and was already considered onerous.
And of course alongside the setting up of this additional step there is now expensive ‘specialist training’ that ‘mediators’ have to go through in order to run what is expected to be a 45 minute meeting. More cost and more complexity to add to the mix that simply doesn’t exist, because it doesn’t need to, in other areas of mediation practice. It doesn’t need to in Family Mediation either.
But the MIAM itself fails to fulfil its intended purpose – instead it is being used in many cases as an ‘exemption certificate’ for separating individuals to not have to have mediation, sometimes encouraged by their lawyer who does not see the purpose of mediation and so has come to see the MIAM as just one more step they need to take people through to get ‘justice’ in their separation or divorce proceedings.
But this emphasises another area of failure in the attempts to make mediation a more commonly used process for couples who are separating – the inherent conflict of interests for lawyers in promoting its use. Mediators can often be accused of ‘lawyer bashing’ when they highlight that many lawyers do not encourage the use of mediation to the extent some mediators think they ‘should’. But why would they? They practice an adversarial process, representing one side of a dispute and it generates an income for them. Why would they choose to encourage a non-adversarial process involving both participants that risks taking work away from them? It is philosophically and financially a conflict of interests for them and it is entirely understandable that they are not likely to support it. Any system that expects those involved to operate in direct conflict with their usual aims and against their own livelihood interests is a very poorly thought through system – destined to fail. However much ‘moral and emotional blackmail’ is used to lean on lawyers to encourage using mediation it will always fail in that expectation, and clearly is at present.
Instead of developing a clear alternative approach to separation, family mediation uk is still placed as an anomalous step within the otherwise legal, adversarial process, leading to confusion and frustration for all involved. The legal process begins as an adversarial process where each party seeks legal representation for them against their ex-partner – let’s not pretend otherwise or couch it in softer terms. The lawyer advises their client to take steps to establish an argument for their gaining the most from the separation without significant consideration of the resulting consequences for their ex-partner. The partners are often advised to avoid contact as much as possible to prevent complications. Then suddenly, within all of this adversarial process continuing, there is an expectation to be non-adversarial and co-operative via an irksome new notion from the government called ‘mediation’ – where the aim is not to win the case against the other person and their lawyer, it is to work with them in co-operation. So of course if it is possible to get that inconvenient step out of the way before it becomes too much of a distraction then many lawyers will try to ensure that is possible, then they can return to the legal process, as is the tradition, and which pays the bills, and where they feel most comfortable.
But because this obvious inhibition to mediation being taken up was not considered in the designing of the structures to encourage its use by separating couples, there is now a step designed to ‘make’ it be used – the MIAM. The thinking seems to be, if a system doesn’t work, rather than design a better system, use any means of compulsion to ‘make it’ work. There are even some in the family mediation uk world that think the mediation process itself should be compulsory. Any such approach is doomed to failure and this is what we are seeing with family mediation uk. Even the ‘fix’ of the MIAM is actually working against the take up of mediation as it has become a way of couples and their lawyers ‘officially’ avoiding the use of mediation rather than just simply ignoring it:
The Legal Aid Quarterly statistics show that there were 1,778 publicly funded mediation starts between April and June, which is up slightly from 1,751 in the previous quarter. However, these figures show a significant year on year fall, with 2,706 mediation starts in the equivalent period in 2013 – which is even more surprising as that was the first three months after the legal aid cuts and the start of the government push to family mediation.
This stands in stark contrast to the rise in mediation take up in private law, with indications from members of Resolution – which represents the largest number of mediators in England and Wales suggesting that private mediations have almost doubled since 2011. This, argues Jo Edwards, Chair of Resolution, points to the creation of a two tier justice system where out of court dispute resolution processes such as mediation are becoming the preserve of those who can afford them.
Taken from Family Law website – published 25th September 2014
I would disagree with the interpretation of the reasons why there is a stark contrast between take up of mediation in private law and in publicly funded mediation. I don’t think it relates to how much money the couples may have, it is to do with what is on offer in the two different situations. In the former the clients express a free choice to pursue mediation, there are no ‘compulsions’ to go through a qualification system required to receive legal aid. Many couples who fund themselves may choose freely to have mediation whether they attend a MIAM or not. They see the benefits independently of any coercion by the system to ‘consider’ it and if they wish to pursue that path they can. This is entirely in line with the self-determining ethos of mediation, something which is being diluted and removed from the publicly funded approach to mediation and even where it is taken up, the process itself loses the intrinsic benefits that arise from a self-determined outcome. Consider these extracts from the Mediation Guidance Manual via the Legal Aid Agency:
2.2. In order for a matter to fall within the scope and remit of publicly funded mediation there must be a legal dispute present. It is not sufficient for there simply to be a dispute between the parties that if left unresolved could lead to a legal dispute and the potential for family proceedings being issued.
Questions to answer in determining whether a matter is in scope of public funding family mediation
Are there family issues in dispute?
Are these disputes over legal issues, rights or duties, i.e. capable of giving rise to family proceedings?
2.3. The mediator must in assessing suitability consider whether the costs of mediation are themselves justified as part of considering whether mediation is suitable for the dispute, the parties and all the circumstances. For example where the dispute is around whether there should be 2 or 3 hours contact a week this would not justify the costs of a mediation.
Family Mediation will cover disputes for example over:
- Contact arrangements
- Residence and Parental Responsibility
- Child maintenance
- Finance – Savings, Debts, Pensions
2.4. If there are no significant legal family issues in dispute and the role of the mediation is simply to improve communication and the relationship between the parties then this will not fall within the scope of public funding. Public funded mediation will not cover therapeutic types of support provided via mediation which solely focus on trying to define issues and concerns, improve relationships and communication between family members and any other party to the mediation, such a Local Authority.
My emphases in red.
So first of all, in publicly funded family mediation uk the participants are ‘assessed’ to see if mediation is ‘suitable’ for them (self-determination?). In other areas of mediation it is the other way round, the participants are the ones who assess whether mediation is suitable for them.
Next the issues that can be discussed are pre-defined by the mediator (self-determination?). In other areas of mediation it is the participants who define the issues that are to be discussed – because they considered to know better than anyone else what the significant issues are in their situation.
Finally, if improvement of communication and the relationship between the parties is an issue of concern, this is not to be publicly funded!
The main cause of frustration and breakdown in looking after children post separation is the difficulties in communicating and establishing a different relationship between the parents such that their focus can be on caring for the child rather than their, now deteriorated and ended, personal relationship. Mediation will be far more effective in helping families post-separation in doing the very thing that is not funded by legal aid. Again, in a private mediation, the participants will be able to set the topics for discussion and no such outside constraint on what they discuss will exist, although unfortunately some mediators may still practise in a way that tries to do so, particularly if they also do publicly funded mediation and bring the same ethos into their private work.
As the title of this article emphasises, family mediation uk is in a mess. When publicly funded mediation is trying to create fixed outcomes to the process without acknowledging that a better relationship will allow the essential flexibility that will be needed post-separation and post-mediation in order to look after any children and for any other challenges that arise, it is doomed to leave the main failure of the legal approach untouched. Indeed it is trying to reach the same goal as the legal approach – neat, fixed ‘arrangements’ and negotiated ‘outcomes’ rather than the establishment of an effective parenting relationship post-separation.
Last year nearly two thirds of couples who attended mediation for a child dispute reached general agreement after a single mediation session. Almost 7 out of every 10 couples who opted for mediation reached a final agreement. – from Gov.UK news story 3rd November 2014.
How can there ever be a ‘final agreement’ regarding the parenting of a child?
How many times do we hear of a parent objecting to a child having a few more hours or days with the other parent because there is an event to attend or a school trip to go on or a visit from the grandparents? These are activities that are in the interests of the child but if they don’t fit the fixed arrangements arising from the court ruling or even the pre-defined mediated ‘outcome’ they become an issue of dispute between the parents because ‘they didn’t stick to the agreement’. How will any life of a child be able to stick to a fixed ‘parenting plan’ that takes priority over the parents being able to communicate effectively and be flexible in their parenting relationship?
Family mediation uk is in a mess because it looks less and less like mediation the more it continues to bring compulsion and directiveness into the process.
But it doesn’t end there……
The whole chain of ineffectiveness is reinforced by having a ‘select few’ training providers that are endorsed by the Government to train people in carrying out these ‘mediations’. As a result of the unexplained elite status of these organisations the courses are very expensive and yet it is not clear via any comparative research that they provide the ‘best’ training in the skills and approach of mediation compared to others.
From the beginning of the New Year, the Family Mediation Council (FMC) is introducing a compulsory accreditation scheme and new professional standards which all mediators must work toward. All mediators and those working towards becoming a family mediator will be required to be registered with the FMC. The Ministry of Justice (MOJ) is funding the preparation work and costs of implementing the new standards. The new professional standards will mean that separating couples and parents can have confidence in the mediator they choose. – from the same Gov.UK news item above quoted above. My emphasis in red.
Do the new professional standards really mean that separating couples and parents can have confidence in the mediator they choose? To do what? To direct them to discuss what the mediator decides is important – because of their pre-defined agenda for what is ‘best’ for them, when it may be anything but the ‘best’ for them.
I have it on good authority that Simon Hughes, Minister of State for Justice and Civil Liberties is supportive of mediation in his local constituency in Southwark in London as it has one of the most respected and long established mediation services in the country located there and the organisation’s Director, Dave Walker has spoken highly of him in the past. But unfortunately I have to say the Minister is misguided in his attempts to make mediation more available and more effective in its assistance for separating couples as he seems to have missed the whole point of what mediation can bring and the reasons why it is able to do so. It doesn’t focus on fixed, contractual outcomes, although that may be part of what a couple decides on, but a more effective, ongoing relationship, different from their previous relationship, that enables a successful ongoing experience of being cared for, for the offspring of the relationship. This cannot be created via a legal process. It is the very thing that mediation offers that the legal process cannot. And yet the systems in place within family mediation uk steer the process towards creating the same outcome as the legal process. So what is the point of that if there is already a process in place that provides it?
Family mediation uk is in a mess and is a missed opportunity. Creating a genuinely alternative provision that is not continually ‘intertwined’ with the legal process – and thus remains an ‘inconvenience’ to just getting on with the usual legal route – is the only way in which the benefits of mediation will clearly be distinguished from the traditional path, thus giving people a chance to decide for themselves that it is their preferred direction rather than one they have to be ‘forced into’ via ineffective methods such as the MIAM, only to come out the other side still within the legal process.
Many lawyers trained in family mediation skills once it became obvious that the Government wanted to ‘push’ mediation for separating couples and so the process was always more likely to stay within the remit of the legal system rather than be carried out via a genuinely alternative route with a genuinely alternative ethos and intention. The idea that lawyers can ‘switch philosophy’ so easily is questionable. Not impossible because I know a few lawyers who are able to establish and assert their different approach depending on the context. But I know many more who can’t and resort to either an arbitration approach or treat the process like a negotiation of ‘outcomes’, or a ‘settlement conference’, finding the ‘relationship stuff’ to be a bit too much outside their comfort zone. That’s less of a problem in commercial, contractual mediation perhaps – but for family mediation situations it’s a distinct skill deficit and as a result the crucial aspects of a separation mediation are not dealt with because it is the mediator’s agenda, backed up by Government directives, to avoid doing so.
Family mediation UK will remain in a mess the longer it stays intertwined with the legal process and is not seen as a genuine alternative to that process, one that may not even need a lawyer’s input unless absolutely essential for allocating asset distribution or other such issues. There are many people who have been able to achieve this and we should be looking to their example to learn how it is possible rather than trying to control and direct how separating couples ‘finalise’ their separation as if it can be neatly tied up in a paper document and last for the duration of the period the parents continue to care for their children. People who have been helped to create a redefined relationship involving improved communication, focused towards being effective parents rather than partners, do not need to keep referring to a document to be told ‘how’ to arrange things, they can continue to develop and learn for themselves. That is what mediation can offer that a legal process cannot. But presently family mediation UK is in such a mess it has lost track of its true potential.