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Family Mediation – Boom or Bust?

Amina Somers, Head of Family Mediation at Goodman Ray, asks what can be done to increase the take-up of family mediation.

Amina Somers, Head of Family Mediation, Goodman Ray

Amina Somers, Head of Family Mediation, Goodman Ray

The policy underpinning the relevant parts of the Children and Families Act 2014 encourages separating couples to resolve their disputes outside of court using a variety of alternative methods of dispute resolution, including mediation. The government will provide increased levels of support through the provision of information to enable couples to resolve matters themselves, particularly in relation to arrangements for their children.

In April 2013 and in line with this policy the government removed public funding for most family disputes, except in exceptional circumstances (mostly relating to domestic violence). 

So over a year after legal aid was withdrawn has the response from separating couples seen an increase in referrals to family mediation?

Prior to the April 2014 changes brought in by the Children and Families Act 2014 drew anecdotal evidence from mediator colleagues suggesting that referrals to mediation were on the decline, particularly to those service providers that offer publically funded mediation.

This also appears to be the experience of some of the main professional bodies that represent family mediators. Last year National Family Mediation issued a press release on 8 October 2013 in which it criticised the government for failing to publicise the fact that public funding remained available for mediation even though it had been withdrawn for divorce, separation and child contact cases. Jane Robey, its Chief Executive Officer said:

"The government had intended that greater numbers of people would try mediation before making an application to court but the failure to publicise services has had the opposite effect and people are heading straight to the court because they do not know what else to do…….What the government didn't see was that lawyers acted as gatekeepers for both mediation and the courts. Now the public is left with few options other than to apply to court, and now more frequently as a litigant in person."

There is no doubt considerable force in what Ms Robey says but one has also to remember that before April 2013 a party to family proceedings could only get public funding for their dispute after they had tried mediation. Now that requirement has disappeared it is also legitimate to consider whether these separating couples only considered mediation to get public funding to enable them to litigate in court. More interestingly this may flag up a whole host of other reasons why mediation is not proving as popular as one might hope and expect, particularly in the context of family disputes.

The statistics in relation to the position regarding privately funded mediations are scant but there are some available statistics for publically funded mediation. The Family Mediators Association's Legal Aid Survey shows that there was a 53% decline in claims being made in respect of legal aid for mediation between April 2013 and December 2013 following the removal of legal aid for family disputes that took place in April 2013 compared to the same period in 2012. This means 53% less mediation starts (in the publically funded sector) for comparable periods pre and post removal of public funding for family disputes.

Legal aid statistics are now available for 2014. These show (approximate figures based on the graphs detailed) a continued downward trend in the number of publically funded mediations that were started in the months April to June of 2012 (3,500) 2013 (2,650) and 2014 (1,750). Further the National Audit Office has estimated that there were 17,246 fewer mediation assessments in 2013 – 2014, a 56% decrease it says from 2012 -2013.

This year, reflecting the concern at the lack of uptake in mediation in family disputes, the Ministry of Justice held a round table web chat in March with Simon Hughes MP, the Minister of State for Justice and Civil Liberties, regarding the future of family mediation. Contributions were invited from mediators, lawyers and other interested parties to look at the reasons why there has not been a greater uptake in family mediation and ideas for promoting family mediation. One contributor to the roundtable discussion in March pointed to the fact that some of the largest and oldest mediation services had closed, a reflection of the crisis family mediation seemed to be facing.

Signposting Family Mediation
There are a number of possible reasons why there appears to be a decline in referrals to mediation and these were highlighted by contributors to the Ministry of Justice web chat. One of the most popular was, as Ms Robey stated, a failure to signpost. Mediators have lobbied for a widespread televised public awareness campaign (seemingly not favoured by the Ministry of Justice), more advertising and explicit incorporation of mediation into popular culture through television dramas like Eastenders and Coronation Street. The Ministry of Justice representatives did mention that mediation had been written into an Eastenders story line however a number of contributors pointed out that this particular storyline resulted in one of the clients running off with the mediator!  

The Ministry of Justice hopes that the revamping of the Family Mediation Council website, to which all forms of signposting and promotional activity will be directed, will significantly improve public awareness of family mediation. There were calls from contributors to the Ministry of Justice web chat for the Courts and CABx to hold information about local mediation services – a laudable idea and much needed.

The Ministry of Justice has also indicated that there will be more publicity material by way of posters and leaflets referring to Family Mediation in the new Family Court. It also set up a Mediation Taskforce to look at the future of mediation and ways of increasing uptake. The Mediation Taskforce made a number of recommendations in its report published in June 2014, including a suggestion that the Ministry of Justice pay for all MIAMs for a period of 12 months.

All of this is very good news. However are there more fundamental reasons why separating couples are not mediating?

Confidence in mediation as a process for resolving family disputes
One possible reason for poor take up that is not often directly discussed in promotional material, is that separating couples may simply lack confidence in mediation as a realistic way of resolving family disputes.

This issue is particularly difficult to address neatly or concisely because the reasons why mediation can and does work is multi-factored including an understanding of conflict, modes of resolution, the particular qualities of the mediator and mediator interaction with the clients he/she is working with.

While there are undoubtedly wide spread misconceptions about what mediation is –  even though the websites of every service provider, professional body and the Ministry of justice and will tell you exactly what it is – I believe there may be real problems in the clients' ability to conceptualise how the mediation process can resolve their dispute.

If that is right, then the information provided about mediation needs to tackle these issues explicitly. 

Difficulties in understanding how mediation works
Most disputes involve a difference in perception – the relationship has broken down – but each party's perception of the situation, how it happened and what should happen next, is different.

In the course of a dispute these differing perceptions are advanced, protected or defended by each party. It is the basis of our adversarial legal system – and lawyers are necessarily very skilled in this adversarial approach.  Thinkers, like Edward de Bono (1985 Conflicts – a better way to resolve them), believe it is almost impossible for a party (or their legal representative) to shift or change their own perceptions by themselves. If that is right then it can easily be seen why disputants might well be sceptical about the prospect of the other party shifting his or her position.

De Bono says they need a third party to help them shift perception. Without an uninvolved third party the system of thinking employed by the disputing parties is adversarial. It is not explorative and it is unlikely to be according to De Bono because any gain by one party is likely to be experienced as a loss for the other.

To put De Bono's argument simplistically, what is required to significantly improve the chances of resolution, is for the mediator, who is not operating from within either parties perception or argument based thinking modes, to intercede by reconciling these different perceptions either by finding common ground or by designing new perceptions that both parties can buy into.

Applying De Bono's ideas would see the family mediator's role as engaging the parties with him/her in designing a solution to their conflict, using a variety of techniques.

The traditional family mediation model readily lends itself to the approaches advocated by De Bono. Such an approach, if handled skilfully by a mediator, could also have the effect of empowering disputing parties at a time when each might be feeling particularly powerless.

What so often happens in any litigation process is that over a period of time the parties become worn out by high professional or emotional costs, fatigue and the slow realisation that there is no easy outcome and often no certain one. 

Eventually some form of compromise may be negotiated but by that time it is usually not the best possible outcome for the parties. This is why government policy – rightly in my view – is trying to get parties to consider mediation as early as realistically possible in family disputes.

Buying into mediation
In order to buy in to mediation, the parties need to understand why the mediator can, with their participation, help them to achieve a much better outcome than litigating the dispute. And it is how the mediator does this that needs to be made explicit to the disputing parties.

De Bono's ideas of how to resolve conflict and what makes conflict difficult for those involved in it to resolve it themselves are not the only theories. There are many other theories of negotiation and of conflict resolution that family mediators will and should be aware of.

It is this range of ideas that need to enter the public arena so that it becomes easier for people to understand why a mediator can make a difference when they or their lawyers have failed to resolve matters through direct negotiation.

Fear as a basis for refusing to mediate
A party's own belief as to what will "really" happen during the mediation process may impact considerably on whether to mediate.

Clients may think that the mediator will indicate explicitly or implicitly that there is no merit in his/her position. Or a client who has felt diminished or the weaker partner in the former relationship may feel that they will not be sufficiently protected or heard in the process. Similarly if one party perceives the other as being more charismatic there may be a feeling that the mediator will be charmed or seduced into adopting that party's position.

And the reality is mediators are human – and are capable of responding unconsciously to particularly seductive or forceful personalities such that the other party can quickly lose confidence. However mediators, coming from a range of professional backgrounds are incredibly aware of such pitfalls.

So it becomes easy to understand why instinctively a party to a dispute will want both someone to "protect" them and "advocate" for them and this of course is exactly what a lawyer can do and distinguishes their role from that of a mediator. Mediators do possess a range of tools available to them to manage perceived or real inequalities in bargaining position.

Where such implicit fears are active in one or both parties it will be difficult for that party to contemplate mediation and therefore either initiate a referral to mediation or respond positively to an invitation to mediate.

Now that the Children and Families Act 2014 requires a party wishing to start court proceedings in a family dispute to attend a Mediation Information and Assessment Meeting (MIAM) skilled mediators (and particularly those with a background in counselling or psychotherapy) should be able to uncover the extent to which such ideas are in operation and deal with them directly or suggest that the client have a session or two of pre-mediation support where such fears and beliefs might be explored before mediation begins.

Choosing a mediator
Mediators come from a variety of different professional backgrounds, eg  the legal, caring and psychological professions.

Some family mediator training bodies may accept only applicants from specific backgrounds. So for example Resolution, the association for family lawyers, only currently trains mediators who are family lawyers – though I understand that this may well change in the future.

The Family Mediators Association offers a family mediator training to professionals from other backgrounds most usually a combination of lawyers and professionals from the caring professions – like social workers and psychotherapists.

Many will argue that previous professional backgrounds or trainings are largely irrelevant – what is required are analytical and problem solving skills and a good understanding of the barriers to conflict resolution and theories of negotiation.

There is no simple answer to what makes a good mediator. In both commercial and family mediations, lawyer mediators (preferably with technical experience of the type of dispute being mediated) are often favoured where the choice of mediator is influenced by the lawyers representing the parties.

Family mediators must be willing and prepared to meet the most challenging of human behaviour at what is often one of the lowest points in the lives of their clients.

When choosing a mediator:

Legal proceedings rarely result in better relations between separating couples while research has shown that mediation produces costs savings and better long term outcomes for children of separating couples. Worth a try?