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The Importance of Non-Legal Skills in Private Law Disputes Relating to Children: A Mediator's Perspective

Lisa Parkinson, a family mediator and trainer, responds to a recent article by Richard Gregorian and Gavin Emerson concerning the need for psychological insight when working with separating or divorcing parents.

Image of Lisa Parkinson, family mediator and trainer

Lisa Parkinson, family mediator and trainer

Richard Gregorian and Gavin Emerson – see their article:  The Importance of Non-Legal Skills in Private Law Disputes Relating to Children including International Relocation ('Leave to Remove' Cases) – are not alone in recognising the need for psychological understanding and therapeutic insights in working with parents and other professionals involved in private law disputes relating to children. Twenty-five years ago, I joined five family lawyers in London in setting up a pilot project called "Solicitors in Mediation" to develop interdisciplinary co-mediation on all issues in separation and divorce. Arrangements for children following parental separation are often entangled with issues over the family home and financial arrangements.

Co-mediators from complementary professional backgrounds, a family law mediator teamed with a mediator from a psychotherapeutic background, helped separating and divorcing couples to deal with legal and non-legal aspects and to manage their often high levels of conflict in reaching consensual decisions. Our pilot project generated so much interest from fellow professionals and demand for training in interdisciplinary co-mediation that we founded the Family Mediators Association (FMA) in 1989. Many FMA mediators see co-mediation as the model of first choice and in some mediation services it is available free of charge to those qualifying for publicly funded mediation. 

In emphasising the benefits of an interdisciplinary approach to family law issues, it is a pity that Richard Gregorian and Gavin Emerson confuse in-court conciliation by CAFCASS officers with the different process of out-of-court mediation by mediators from family law, social work and psychotherapeutic backgrounds. The authors base their arguments on Dr Liz Trinder's research on "The Longer-Term Outcomes of In-Court Conciliation" (April [2008] Fam Law). However, as the title of her research indicates, Dr Trinder studied in-court conciliation, not mediation, and the case for mediation is strengthened by her conclusion that "resources should be redirected towards creative work to improve parental and parent-child relationships, rather than repeated attempts at imposing a solution". 

Although family mediation is a short-term process compared with counselling or therapy, the focus is not on achieving quick agreements in a short time, under the control of the court. Most mediations are undertaken before application to the court and one of the main aims is to facilitate dialogue between parents whose communication has often broken down and to help them reach joint decisions that take account of their children's needs and feelings, as well as their own. Limited public funding imposes time constraints and inevitably there are situations needing adjudication by the court and/or longer-term therapy, where mediation is unsuitable or ineffective. However, the National Audit Office found that mediation "secures better outcomes, particularly for children" (Review, March 2007). Other studies have shown that agreements worked out by the participants themselves in a private forum are more likely to last than decisions imposed on them with the authority of the court. Separated parents with a renewed ability to co-operate with each other are also more able to renegotiate their arrangements as their children grow up and circumstances change.

There have been some recent pilot schemes undertaken via the President's Private Law Programme and funded by the Legal Services Commission in which litigants in private law children matters have an opportunity to see a family mediator at court to find out about family mediation. If mediation is suitable and both parties are willing, they can arrange to take part in mediation out of court. Court proceedings can be adjourned to enable the mediation to take place. Although there is an occasional possibility of some brief mediation at court on urgent issues, these pilot schemes underline the distinction between conciliation via CAFCASS and mediation itself. Mediators across the country are awaiting publication of the results of the pilots. It is hoped that the findings will support the proposals in the recent Green Paper, "Support for All" (Department for Children, Schools and Families), requiring would-be applicants in family law proceedings to consider mediation before an application can be processed by the court. Although attendance at an initial information meeting would be compulsory, mediation is voluntary and confidential (unless there are child protection issues).

Family mediation can also provide opportunities for children and young people to be involved when appropriate and for their views and feelings to be taken into account by their parents. Mediators are required to have additional specialised training for child-inclusive mediation. Although there are few research studies so far, feedback from children and parents illustrates the benefits of listening to children during the mediation process, in contrast to the distressing case of S (A Child) [2010] EWCA Civ 219 described by Claire Brissenden in the recent issue of Family Law Week.

I fully support Richard Gregorian and Gavin Emerson's call for an interdisciplinary approach to family law issues, underpinned by psychological understanding. I hope they will accept that the shortcomings they refer to came from a study of in-court conciliation outcomes and not from mediation.

Lisa Parkinson, family mediator and trainer