On the path to family justice

It was a pleasure to attend the ‘New year,
new family dispute resolution’ evening which
took place at Farrer and Co in early January, focusing on the growing client interest
in non-court family dispute resolution (FDR)
for 2015, and particularly on the findings of the briefing paper ‘Mapping Paths to Family Justice’. The full report, which was prepared by Professor Anne Barlow (University of Exeter), Rosemary Hunter (University of Kent), Janet Simpson (University of Exeter) and Jan Ewing (University
of Kent), is available online.

The briefing paper sets out the findings of a three-year academic research project, which collected data from face-to-face and telephone interviews with around 7,000 people who had experience of non-court FDR, including both legal aid and private clients and practitioners.

The central aim was to provide evidence of the public’s awareness, usage, experience and outcomes of the different out-of-court FDR processes. Of particular interest to family practitioners
will be the fact that separating couples increasingly
prefer to settle disputes using non-court dispute resolution such as mediation, collaborative law
and solicitors’ negotiations.

The key findings of the report are:

1. Gender-balanced co-mediation

This would address concerns about partiality. Co-mediation was useful in discussions about children, but is not often used because of the costs of having another mediator present.

I use this model when there are several indicators from the intake session which point towards co-mediation (for example, clients who are frequently in high conflict, high-net-worth cases, relationships where there are power imbalances, or emotionally needy clients). I often co-mediate with a couples’ counsellor, Massy Ellesmere. Clients seem to like having someone from a legal background and a co-mediator from a therapeutic background present. The mediators’ tasks can be divided when co-mediations take place, and having a male and female mediator in the room can provide a gender balance and set up a model to counteract any power imbalance. Lisa Parkinson, a family mediator, has also commented in her book, Appropriate Dispute Resolution in a New Family Justice System (second edition), that research shows male and female mediators produce fairer and more balanced agreements.

2. Mediation information assessment meetings (MIAM)

Moving into the MIAM era, we have examples of courts ordering parties to mediate.

I am starting to receive more referrals from courts for cases in which the judge believes the parties would benefit from talking to each other rather than litigating. Some of my recent court referrals have been for a matter in which the clients could not decide on how to review childcare arrangements, and a financial settlement case in which it had been agreed in court that the larger assets would be divided, but the household contents had not been determined, and the judge thought it would be useful for the clients to attend mediation. The clients attended one joint 90-minute session and were quickly able to decide how the house contents would be divided.

3. Preparing clients

Ensure that mediation clients are well prepared before they start. This can include ensuring people are aware of what mediation involves as not a lot of people know what mediation is before they start the process. Clients commonly learn about mediation from their solicitor or by attending a MIAM with a mediator.

I check early on whether clients have sought legal advice, although this is sometimes difficult now that legal aid has been removed in a lot of family law areas. Legal clinics such as the Citizens Advice Bureau in Holborn provide three visits of 30 to 45 minutes for those who are eligible, which can provide clients with an idea of where they stand legally and prepare them for mediation.

I discuss with clients all of the options open to them. It may be that mediation is not the right process for them, but if they know how each option works, they can then make an informed decision about which process may be the best match for them.

I have an adapted financial statement (form E) for the clients to complete. I try to ensure they complete the form as thoroughly as possible, and provide all of the details and supporting documents requested, because if there are large gaps in their form E, it can sometimes be difficult to progress a financial mediation session.

4. The voice of the child

The report finds that direct consultations with children rarely happen, but there is definitely an argument that children’s voices should be heard more often in the mediation forum and other FDR processes.

I am trained to mediate with children and have around three or four cases each year in which the parents agree for me to meet with the children in a separate session and then provide them with feedback that the children want me to give their parents.

I have worked with a British parent, who was living outside Europe, and their three UK-resident teenage sons, who wanted to know why the parent had moved abroad at the end of the marriage and how they could re-establish contact.

I have also worked with three teenage children who had very busy school schedules and wanted to spend more time with their mother, but wanted to do more outside activities rather than playing computer games, which the mother used to encourage instead of physical activities.

5. Mediation frustrations

The report highlights situations where mediation can break down (for example, one person not providing information, worries about being in the same room as a former partner, and power imbalances).

The mediation process may not go into the same depth of financial disclosure as the courts, but for mediation to work the clients need to provide financial disclosure information to the other person in mediation. If mediation clients cannot get the financial information they feel they need, they may use the court process to obtain it and then return to mediation when they want to start considering financial options for settlement.
I find this is happening more often. Clients may go to court up to the financial dispute resolution stage, but then come to mediation if they feel financial disclosure has been completed and they want to avoid a final hearing where legal costs
can escalate.

I do some mediation cases on a ‘shuttle’ basis where clients are not in the same room. This process is a lot slower than when everyone is in the same room, but in some cases it can work better. Some cases I have worked on started as shuttle mediations and then changed to the same room at the next session when the parties saw progress was being made.

If there is a power imbalance (for instance, if one person does not have as good a grasp of the finances), a neutral third party such as an independent financial adviser may be present in the joint mediation sessions. Last week I mediated with a Bengali client who was not confident about his English, so an independent translator accompanied him to the mediation sessions with the agreement of the other party.

6. Screening in mediation

The report indicates areas that could be improved in mediation. For example, there could be better screening for abuse and conflict. A lot of people felt that screening lacked impartiality, and that when there were high levels of conflict, the mediator could not control the situation.

I tend to do my screening with the clients separately by arranging the intake sessions at different times. I know mediators who do intake sessions with the clients together, and then see the clients separately for the screening for part of the session, but I want the client to feel comfortable talking to me without the other person being in the room with them.

7. What could be done better?

The report looks at providing counselling or other therapeutic methods to support people who may be emotionally vulnerable.

Many divorcing clients obviously describe this as a very stressful time. Referrals to a counsellor need to be made sensitively. Some of my clients see counselling as a weakness; others have attended counselling and found it very useful.
For example, a client who had a young daughter in Scotland and was unhappy about having contact in a hotel and not at her home wanted to talk through how she felt with a counsellor. After the sessions, the client explained she felt a lot calmer and in a better place.

I am quite lucky in that I am a member of the collaborative ‘pod’ group Essex Family Solutions. There are three or four counsellors who regularly attend, and I have been able to get to know them quite well, so that when a referral is made I am confident that the client will be treated sensitively and get on with the counsellor.

If you are interested in the family law and family mediation fields, the report is well worth a read. I found it useful to see what feedback clients have provided about the different forms of FDR. This report, and the subsequent discussions with fellow delegates at the Farrer and Co event, made me reflect on my own practice, and how I can continue to improve my service to clients in each of the out-of-court options. Judging from the comments of the majority of the delegates I spoke to, fees are a significant factor in clients’ decision making when they are considering which option to use when separating from a former partner, and mediation can be one of the more cost-effective options. However, clients need to understand how mediation works before deciding if it is the right option for them. SJ

Austin Chessell is a child and family mediator at FAMIA. He is also a collaborative family solicitor at Feltons and a member of the collaborative pod group Essex Family Solutions

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