Family Mediation: Contemporary Issues 9781526505415, 9781526505446, 9781526505439

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Family Mediation: Contemporary Issues

Family Mediation: Contemporary Issues Marian Roberts Maria Federica Moscati

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 41–43 Boltro Road, Haywards Heath, RH16 1BJ, UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbur y Publishing Plc First published in Great Britain 2020 Copyright © BloomsburyProfessional 2020 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998-2020. British Librar y Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:

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About the authors

Editors Marian Roberts, qualified as a barrister and a social worker, has been in continuous practice as a family mediator since 1982, focusing on high-conflict disputes over children. She is a member of the European Network of Cross-Border Family Mediators and is a Professional Practice Consultant (PPC) with Reunite’s child abduction mediation service. During the 1990s, she was responsible for overseeing the creation of National Family Mediation’s (NFM) training and professional practice framework. She has also been involved in the development of the national professional regulatory framework for family mediators as Governor of the UK College of Family Mediators (now the College of Mediators), as founding member and former Chair of its Professional Standards Committee, and currently as College Adviser. She has taught on the London University Alternative Dispute Resolution (ADR) LLM, the SOAS ADR LLM and the London School of Economics ADR LLM. Her publications include Access to Agreement: A  Consumer Study of Mediation in Family Disputes, with Gwynn Davis (1988); Developing the Craft of Mediation: Reflections on Theory and Practice (2007) – Finalist in the Centre for Effective Dispute Resolution Awards for Excellence in ADR, 2008 (Publication Category) [Hebrew translation 2012]; A-Z  of mediation (2014); and Mediation in Family Disputes: Principles of Practice (4th ed 2014). Maria Federica Moscati is Senior Lecturer in Family Law at the University of Sussex. An Italian advocate and trained mediator, she holds a PhD from SOAS. Before undertaking her doctorate, she worked for Save the Children Italy, specialising in children’s rights. Her main research interests lie at the intersection of dispute resolution, access to justice, comparative family law, children’s rights, sexual orientation and gender identity. Her publications include Pasolini’s Italian Premonitions: SameSex Unions and the Law in Comparative Perspective. Her research project on same-sex couples and mediation in the EU has been funded by the European Commission. Maria Federica combines academic interests with activism in support of LGBTQ+ people, and as a lawyer she has been involved in a number of domestic and European court cases, the most recent being Orlandi and Others v Italy. She is co-director of the Centre for Cultures of Reproduction, Technologies and Health at the University of Sussex, and co-editor of the journal Mediation Theory and Practice.

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About the authors

Contributors Lesley Allport has had a long career as a mediation practitioner, spanning the last 30 years. Working initially as a family mediator in the 1980s, she has been involved in developing new areas of practice such as special educational needs mediation and disability conciliation. She mediates conflicts within families, workplaces and education settings, as well as having experience in community mediation and cross-border child abduction cases. Lesley delivers foundation mediation training in several contexts and offers advanced training for supervisors and mediators working directly with children. She has a keen interest in developing professional standards. She is currently Vice Chair of the College of Mediators and acts as an adviser to the Professional Standards Committee. She also sits on the editorial board of the College journal Mediation Theory and Practice. Lesley’s academic interest in mediation began in 2005 with a European master’s degree, as part of which she developed a model of supervision specific to mediation. In 2016 she successfully completed her PhD with the Birmingham Law School, examining the comparative growth of mediation. Her research included conversations with many mediators working in a variety of contexts and investigated core aspects of mediation practice operating across all sectors. Anne Barlow FAcSS is Professor of Family Law and Policy at the University of Exeter. She specialises in family law and policy research, and has published widely in the field. Between 2011 and 2014, she led the three-year interdisciplinary study Mapping Paths to Family Justice, looking at out-of-court dispute resolution of private  family law issues, which was funded by the Economic Social and Research Council (ESRC). She also led a follow-on impact study, Creating Paths to Family Justice  (2015–19), where she and the Mapping Paths research team worked with a number of agencies – including OnePlusOne, Relate, the Ministry of Justice, the Family Mediation Council (FMC), Resolution and the Children and Family Court Advisory and Support Service (CAFCASS) – to draw on research findings to develop online and offline mediation services for separating couples and children. Anne was appointed as the Academic Member of the Family Justice Council from 2011–15 and in 2014 she served as a member of the government’s Task Force on Family Mediation. Her book, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Palgrave, 2017), co-authored with the Mapping Paths research team (Rosemary Hunter, Janet Smithson and Jan Ewing), also won the Hart-Socio-Legal Studies Association (SLSA) book prize in 2018. Lorraine Bramwell is a well-established national trainer of mediators and directs one of the few mediation training courses that has recognition from both the Family Mediation Standards Board (FMSB) and the College of Mediators. She is a family and civil and commercial mediator and has been in continuous practice since 1995. Lorraine has a master’s degree in Mediation and Conflict Resolution, a degree in Psychology vi

Contributors and a postgraduate diploma in Applied Social Studies. She has held the positions of both Director and Chair of the College of Mediators, is Chair of the College’s Professional Standards Committee and continues to play an active role in the development of mediation standards. Lorraine is an Approved Member of the College of Mediators and holds FMC accreditation. She also teaches mediation skills at university level and is an assessor for the accreditation of professional mediators for the FMC. Lorraine acts as PPC to a number of other practitioners and services, and has pioneered work in the support of new mediators entering the mediation profession. Sinead Conneely is a graduate of University College Galway (BA 1993; LLB 1995), University of Cambridge (LLM 1997), Trinity College Dublin (PhD 2001) and the King’s Inns (BL 2001). Sinead has spent the last 20 years working as a lecturer in academic institutions – mostly Waterford Institute of Technology (WIT) – teaching a wide variety of legal courses, including modules on employment law and mediation. She completed her master’s at the University of Cambridge, examining commercial insurance law, corporate finance law and insolvency law, as well as family law and policy. Her PhD was undertaken at Trinity College Dublin. Her thesis outlined the origins and development of family mediation internationally and then comparatively analysed the adoption and process of family mediation in Ireland and Northern Ireland. She trained as a mediator in 2012. Sinead is project coordinator for the WIT Family Mediation project, where her role is that of administrator and volunteer mediator; and has been conducting empirical research attending family law cases in the District Court since March 2017. In 2018, she was invited by the Legal Aid Board to join the working group for the establishment of the Mediation Council of Ireland. Sandra Fenn worked in various roles supporting children and family welfare across the public sector for more than 20 years before, as a Trustee of Reunite, she became a founding member of the working party convened to explore the possibility of mediating in high-conflict international child abduction cases. As part of this process, she trained as a mediator and comediated most of the original cases chosen for the successful pilot project. For the last 18 years, she has provided assistance to other organisations in Europe and consults with, and collaborates in, setting up similar schemes. She is a training provider in international cross-border children’s issues to mediators in both Europe and Japan. She is part of the European Network of Cross-Border Family Mediators and as such co-mediates with colleagues from other jurisdictions to help parents resolve their issues. She is now a consultant mediator with Reunite. Anne Hall Dick was a family lawyer for 42 years before her retirement from practice in 2017. She was accredited by the Law Society of Scotland as a Family Law Specialist. Anne was founding Chair of the Family Law Association in 1989. She was the first mediator to be accredited by the Law Society of Scotland, in 1993. She was the first Convenor of CALM, vii

About the authors the association of accredited family mediators in Scotland. Anne is an Associate Member of the Chartered Institute of Arbitrators and was a founder member of the Family Law Arbitration Group (Scotland) in 2010. Anne is one of the original four founder members of the Scottish Collaborative Family Law Group (now Consensus) who trained in London in collaborative practice in 2004. Anne annotates The Family Law (Scotland) Act 1985 for W Green and also jointly wrote The Art of Family Law and The Science of Family Law and Child Centred Legal Practice for the same publishers. Anne was presented with a Lifetime Achievement Award at the Law Awards in Edinburgh in 2017. Anne’s focus is now on writing, training and mediation, which she offers through Inkdance Family Mediation. Rosemar y Hunter FacSS is Professor of Law and Socio-Legal Studies at the University of Kent. She is a feminist socio-legal scholar with particular interests in family law and family justice processes, judging and the judiciary, and access to justice. She has published widely on these topics in both Australia (where she began her academic career) and the UK. With Anne Barlow, she was a member of the ESRC-funded Mapping Paths to Family Justice project, which resulted in their prize-winning book, Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (Barlow, Hunter, Smithson and Ewing, 2017). Rosemary has been the Academic Member of the Family Justice Council since 2016 and leads the Council’s Domestic Abuse Working Group. She is also a member of the Private Law Working Group and the Ministry of Justice’s Expert Panel on Harm in the Family Courts. She is a former Chair of the SLSA and a former Council member of JUSTICE. Anne-Marie Hutchinson OBE, QC (Hon) is a partner at Dawson Cornwell, one of the UK’s leading family law firms. She is consistently named as one of the leading family lawyers in London in both Chambers and The Legal 500, and is singled out as a ‘star individual’. Anne-Marie specialises in all aspects of domestic and international family law and the international movement of children. She has expertise in divorce and jurisdictional disputes, with particular expertise in international custody disputes, child abduction (Hague and non-Hague) and the EU  Regulation on jurisdiction in family matters. She was awarded the inaugural UNICEF  Child Rights Lawyer Award in 1999. She received an OBE for her services to international child abduction and adoption in 2002. She was selected as Legal Aid Lawyer of the Year in 2004; received the International Bar Association Outstanding International Woman Lawyer Award in 2010; was presented with the Jordans International Family Lawyer of the Year Award in 2012; and was awarded the prestigious International Academy of Family Lawyers President’s Medal in 2014. Anne-Marie was appointed Queen’s Counsel honoris causa in 2016 and received an honorary doctorate of laws from the University of Leeds the same year. Anne-Marie is chair of the Board of Trustees of Reunite. viii

Contributors Angela Lake-Carroll is a Reunite Trustee. She has over 30 years’ experience of working with separated families. She is a collaborative practitioner, an accredited and practising family mediator and a PPC and trainer, and is Chief Assessor to the Law Society’s Family Mediation Accreditation Scheme. She works as an independent consultant across a broad range of family law and family dispute resolution matters. She has worked with and contributed to government policy for families and children and young people, and has extensive experience across the private, public and charitable sectors. Angela has a particular interest in families and social change and family justice reform. She writes and presents training nationally and internationally, and is a contributing author and commentator to Family Law and other professional journals. She has worked with and contributed to government policy with the Ministry of Justice, and the Departments of Health, Education and Work and Pensions. In 2014, Angela was appointed Co-chair (with Emeritus Professor Janet Walker OBE, Newcastle University) of the government’s Family Dispute Resolution Advisory Group and co-authored the report and recommendations of that group to government. In 2016, Angela was awarded the John Cornwell Award for her outstanding contribution to supporting separating families. Roisin O’Shea is an award-winning former Irish Research Council scholar and mediator, who was awarded a PhD in 2014 for her doctoral research in family law. She is a partner in Arc Mediation and has significant experience as a family mediator, completing hundreds of cases since 2009. She has been a board member of the Mediators Institute of Ireland since 2015 and a member of the Association of Family and Conciliation Courts International Committee headed up by Teresa Williams of CAFCASS. Roisin is the Principal Investigator for WIT’s Family Mediation Project and is also carrying out empirical research attending family law sittings with ministerial consent in the District Court in Ireland. Roisin was a keynote speaker in February 2018, speaking on ‘Modern families, modern family justice’, a St George’s House European Consultation at Windsor Castle. Later that year she was invited by the Legal Aid Board to join the working group for the establishment of the Mediation Council of Ireland. In March 2019 she was invited as a family law and mediation expert to attend a meeting of the Joint Committee on Justice and Equality, and to make a submission and present her views on the topic of ‘Reform of the Family Law System’, including the use of mediation. In May 2019 she was also appointed as an external independent evaluator for the revalidation of a Certificate in Mediation by Griffith College Dublin. Neil Robinson is a foundation trainer for the Family Mediators Association, a PPC and mediator, and consultant to the Family Mediation Centre Staffordshire. He is Visiting Professor at the Law and Business School, Staffordshire University. He was Legal Aid Family Lawyer of the Year 2007. Neil sits as a Mental Health Tribunal Judge, and has a longstanding interest in the interrelationship between family mediation, ix

About the authors justice and the creative arts, and in the development of family dispute resolution to meet all needs and situations. He is currently embarked on a series of ‘Conversation Pieces’ for mediators in Family Law Journal and a parallel project of songwriting for his singing group, Fish from Oblivion. Lesley Saunders PhD, FMCA is a family mediator, PPC, trainer and competence assessor. From an early background in social policy research and curriculum development, Lesley retrained in the 1990s in counselling, with a focus on children and young people, and also in mediation. Initially working in the community on neighbour disputes, Lesley extended her skills to encompass workplace, small claims and special educational needs mediation, as well as being a mediator and PPC with the Disability Conciliation Service. Lesley trained as a family mediator in 2002 and qualified in 2004. Since then, she has focused almost entirely on family mediation – mediating, qualifying as a PPC in 2010, working with NFM and now independently as a trainer, and with the FMC as an assessor of mediator competence. Alongside this, Lesley has been involved at a national level variously as a board member of the College of Mediators, on the Professional Practice Committee of NFM, with the FMC on Stan Lester’s work on the development of the standards framework and currently on the PPC panel of the FMSB.  Andrew Sims is an independent mediator, trainer and consultant. He studied social psychology at university and comes from a business background. Andrew is an accredited family mediator (FMCA), a PPC and a registered civil and commercial mediator, and mediates with a range of practices in London and the South-East. He specialises in mediating high-conflict disputes in a variety of fields, including family, civil and commercial, inter-generational, community, workplace and employment mediation. Andrew held the post of Service Manager at the South-East London Family Mediation Bureau from 2016–19 and prior to this acted as a Mediation Development Consultant to an independent homeless charity, advising its specialist mediation team.He has been a Trustee with Southwark Mediation Centre for eight years. During this period, he worked as a coach for Talking Works in Schools and as an Assessor to the Peer Mediation Training programme at Bacon’s College, London. In 2016 he was invited to speak about the value of peer mediation to the AllParty Parliamentary Group on ADR. Andrew is a member of the College of Mediators’ Professional Standards Committee. Katherine Stylianou is a Senior Lecturer at London South Bank University (LSBU) and has been a practising mediator since 1995, gaining her accreditation in 1998. She has had 21 years of experience in developing and delivering undergraduate and postgraduate modules in ADR and mediation at LSBU. The other institutions for which Katherine has worked include Birkbeck, University of London (external examiner and guest lecturer on the MSc Conflict Studies and Mediation course) and Westminster University (wrote and delivered a course on family mediation x

Contributors on the LLM Dispute Resolution course). Katherine has been a fellow of the Higher Education Academy since 2005, when she also obtained a Certificate in Learning and Teaching in Higher Education. She originally trained as a barrister in 1987, working at the Family and Criminal Bar before taking up her position at LSBU in 1991. Katherine has been an assessor and trainer for Lorraine Bramwell Associates since 2013 and a PCC/supervisor to family mediators since 2015. From 2012 to December 2016, she served on the College of Mediators’ Professional Standards Committee, before which she was an elected Governor of the UK College of Family Mediators. She continues to be involved as an adviser to the College of Mediators. Lisa Webley is Chair in Legal Education and Research and Head of Birmingham Law School at the University of Birmingham. She is also Head of Research at the Centre for Professional Legal Education and Research at Birmingham Law School and Senior Research Fellow at the Institute of Advanced Legal Studies, University of London. She is Chair of the International Working Group for the Comparative Study of the Legal Professions and is General Editor of the journal Legal Ethics. Her research spans legal education, legal ethics, the legal profession, dispute resolution, lawtech and access to justice, including family justice. Tony Whatling MSc, CQSW, MCOM has a background in social work practice, (child care, adult mental health and family therapy), team management and education. He has over 30 years’ experience as a mediator, PPC and self-employed trainer. He has trained hundreds of mediators throughout the UK in family, community, health care complaints, victim offender and workplace mediation contexts. Over a period of ten years, he designed and delivered training to some 1,300 Muslim family mediators in India, Pakistan, Kenya, Uganda, Tanzania, Syria, Afghanistan, Portugal, the UK, the USA and Canada. He has presented papers and workshops at several international conferences, published some 40 articles on mediation practice, and was a founder member and former elected governor of the College of Mediators. His book Mediation Skills and Strategies – A  Practical Guide (2012) has sold over 3,000 copies worldwide and is also published in Spanish. He is currently working on his next book. Barbara Wilson PhD lives on the south coast of England. Following an earlier career with the former Lord Chancellor’s Department, she became a family mediator in 1990, qualifying also as a social worker in 1991. After practising in both fields until 1999, she is now a full-time ADR professional. Since 2012 she has worked as a mediator and PPC with Phillips Solicitors, a Legal 500 firm based in Basingstoke, Hampshire. She has been involved with various advisory groups, including for the Ministry of Justice; has provided at-court mediation at the Central Family Court, London; and served as a competence assessor for the FMC. She was co-opted to take part in the FMC’s professional standards review in 2014. Barbara is a Visiting Scholar at the Law School, University of Strathclyde, where xi

About the authors she teaches on the Mediation Elective of the LLM/MSc programme in Mediation and Conflict Resolution. She is also an External Examiner for the National University of Ireland Galway. Her research interests include virtue ethics, mediator expertise and the practical application of theory. She has been published in the UK, Australia, the Caribbean, Denmark and the USA.

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Contents About the authors

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Chapter 1  Introduction Marian Roberts and Maria Moscati

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Chapter 2  Reconstruction of family mediation in a postjustice world 11 Rosemary Hunter and Anne Barlow Introduction11 The road to post-justice 12 Mediation within liberal and neoliberal frames 14 Looking to the future 19 Conclusion25 Chapter 3  Development of the regulator y framework for the practice of mediation in the UK 33 Lesley Saunders Introduction33 The emergence of family mediation and beginnings of regulation (1977–2007) 35 Turbulence, transition and transformation (2007–13) 39 The regulatory project (2013–18) 42 Extending the standards framework 45 Reviewing the standards framework 47 Conclusion and the way forward 48 Chapter 4  Family mediation: the Irish perspective 55 Sinéad Conneely and Róisín O’Shea Irish family law and family life 55 The development of family mediation in Ireland 56 Ongoing research 59 The genesis of the Mediation Act 2017 62 The Mediation Act 2017 62 Conclusion69 Chapter 5  Family mediation: the Scottish perspective 75 Anne Hall Dick Introduction75 Context – the political, legal and cultural setting 76 The development of family mediation in Scotland 79 The relationship between family mediation and the civil justice system 82 xiii

Contents The evolution of family mediation in Scotland with regard to practice, training and procedure 84 Conclusion89 Chapter 6  Ethics and the family mediation process 97 Lisa Webley Introduction97 The ethical underpinnings of family mediation 98 Ethical conduct and professional practice 100 Process ethics: mediator neutrality and/or impartiality as process virtues 102 Normative frameworks as protections for the vulnerable: the family mediator’s role beyond process protections? 105 Conclusions107 Chapter 7  Models, styles and third parties: a fresh look at three core concepts in family mediation 117 Barbara Wilson Introduction117 Models and styles 118 Third parties 122 Of words and worldviews: how mediation is construed 130 Conclusion131 Chapter 8  The meaning of power in family mediation: new forms and functions 139 Marian Roberts Introduction139 What is power in this context? 139 Bargaining power 141 Early power critiques of mediation 143 Neutrality, impartiality and power 144 Theory, practice and power 147 Mediator authority and power 150 The special case of domestic abuse 151 New manifestations of power in family mediation 152 Conclusion154 Chapter 9  Whose truth is it anyway? An imaginative reflection on the place of truth in family mediation Neil Robinson Why might truth matter to mediators and their clients? Mediation and communication in a global context: the current climate What might the world learn from mediators about truth? The truth about abuse Assessment, capacity and truth Truth and mediation intervention xiv

161 161 162 164 165 167 168

Contents Some theories, approaches and models Conclusion – ‘in the beginning is the conversation’

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Chapter 10  The voice of the child in family mediation 181 Lesley Allport Introduction181 Changing perceptions of the mid-1980s to late 1990s 182 New insights in the 21st century 187 The current picture 191 Conclusions196 Chapter 11  Mediation in children’s cases with a crossborder element – in particular, international child abduction, leave to remove and international contact 203 Sandra Fenn, Anne-Marie Hutchinson and Angela Lake-Carroll The legal context 203 Time constraints 204 Relevant articles of the Hague Convention 204 The socio-legal context and the introduction of family mediation 206 Reunite207 Mediation in international child abduction matters 207 Establishing a mediation model for international child abduction 210 Screening and assessment 211 The Reunite mediation process 212 Use of new technologies 218 Conclusion219 Chapter 12  We have the method but still there is so much to do: mediation for gender and sexually diverse relationships227 Maria Federica Moscati Introduction227 Sexual orientation, gender identity and mediation 229 Reshaping family mediation practices 235 Children in mediation 238 Concluding thoughts 242 Chapter 13  Creative paths to practice: helping new mediators to navigate the route to artistr y 251 Lorraine Bramwell Introduction251 Making better mediators 252 Training and regulation in the UK 254 The journey from trainee mediator to FMCA 259 The supported experience gap – challenges for mediators between training and accreditation 263 New approaches to gaining practice experience 265 xv

Contents Chapter 14  Teaching family mediation in higher education – what an academic family mediation course could look like 273 Katherine Stylianou Introduction273 History and current relevance of a higher education course in family mediation 274 Indicative content 276 Conclusion287 Chapter 15  Exploring the scope of family mediation in England and Wales 295 Andrew Sims Introduction295 What constitutes family mediation in England and Wales? 295 The current understanding of family mediation in England and Wales 296 The evolution of family mediation in England and Wales 297 Changing family structures in England and Wales 298 Where is family mediation in England and Wales at now? 299 Adult sibling mediation 301 Family inheritance mediation 303 Public family law, including child care mediation 304 Elder mediation 305 Medical mediation involving children 307 Why are family mediators well equipped, and why is family mediation well suited, to deal with these broader family cases? 308 What should happen now? 309 Conclusion312 Chapter 16  Domestic abuse and family mediation: what can an experienced mediator tell us? Tony Whatling, interviewed by the editors

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Index337

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Chapter 1

Introduction Marian Roberts and Maria Moscati

The modern emergence of mediation in the late twentieth century represents the evolving application of an ancient and universal method of settling quarrels (Roberts and Palmer 2005). This mode of dispute resolution embodies two distinctive features, of singular importance for its early pioneers as well as its later practitioners. First, its core values embody an ethic of respect – in particular, for the parties’ own decision-making authority; for mutual respect and equity of exchange; for fairness; and for consensual agreement. The second feature, directly linked to this ethic of respect, exemplifies the non-aligned, facilitative role of the mediator, differing essentially from the usual role of the professional intervener – that of dominant expert. Yet it is well recognised too that even the minimal numerical transformation that occurs in mediation, of the dyad into the triad, has radical, complex and paradoxical effects. The mere presence of the third-party mediator qualitatively alters the relationship between the parties and exerts influence. Moreover, the interaction is altered in another important respect, by the mediator embodying the principle of objectivity and reasonableness in party decision making: ‘the non-partisan tempers the passion of others’ (Simmel 1908: 152). Nowhere is this more relevant than in the mediation of family disputes. The breakdown of intimate family relationships can generate the most powerful and acrimonious of emotions, influenced in addition by broader structural and systemic inequalities. The simplicity, rationality and indeed beauty of the ideals of mediation belie the complexity both of its realisation in practice and of the kind and scale of its impact, particularly in respect of its relationship to the formal justice system. The recourse to family mediation in the United Kingdom now constitutes the approved pathway in the current landscape of family dispute resolution processes, officially endorsed and publicly funded by the government. This development exemplifies a fundamental transformation of disputing practice in the family justice system in the UK. However, it is a transformation that raises questions concerning the quality of the mediatory intervention, access to justice and individual choice. The dramatic cuts to legal aid brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have had a negative impact on the parties involved in family disputes. Although legal aid is available for mediation, one of the overarching principles of mediation – voluntary participation – might be seriously undermined by the cuts denying parties choice of dispute resolution process. 1

Introduction There is no shortage of family mediation practice handbooks. There is, however, a glaring gap in the current literature regarding the range of questions, challenges and concerns that characterise this now institutionalised mode of settling family disputes. For example, what is the relationship between legal principles and standards of formal justice and party-determined definitions of fairness (ethical, personal and legal) in the private ordering of family mediation? What policy developments have informed practice guidelines in respect of training and academic teaching? What is the appropriate role of children in family mediation? How effective is pre-mediation assessment of suitability for mediation and for the screening of power imbalances and domestic abuse? What progress has been made in the professional regulation and quality assurance of mediation practice? Have the changing dynamics of diverse family forms, cross-culture, sexual orientation and gender identity been sufficiently understood and addressed? What impact has there been on practice of the expansion of family mediation to incorporate a wider range of family disputes than its traditional focus on issues arising from separation and divorce, such as intergenerational and elder mediation? How has mediation been adapted to those high-conflict disputes over children associated with child abduction, relocation and the breakdown of international family relationships? Have the fundamental overarching ethical principles of mediation (especially of voluntary participation, confidentiality and impartiality) been compromised by political and professional pressures that can threaten safe practice and the integrity of the mediation process? This collection aims to fill the gap by addressing some of these questions. In presenting up-to-date and comprehensive coverage of developments, in theory and practice, the aims of the book are threefold: • to provide a critical overview of current developments and research in family mediation in the UK and in Ireland; • to expand knowledge that will lead to improved professional practice and enhanced understanding of the nature, benefits and limitations of this mode of intervention; and • to engage scholars and practitioners in a joint endeavour of collegiate exchange and collaboration, drawing on both research findings and the deep reservoir of practice experience and reflection. The book will be of interest to various audiences. It speaks to mediators – both family mediators and those mediating in many other fields – members of the legal professions and judges, welfare professionals and therapists, government and policy makers, scholars and students and, of course, the interested lay reader whose own life experiences might well constitute the stuff of family mediation. 2

Introduction The collection is divided into 16 chapters. These chapters reflect the relevance of the topics to contemporary developments and the particular subject interests and practice expertise of the contributors – both leading scholars in the field and foremost family mediation practitioners. The chapters explore core ethical and professional issues and the impact on family mediation of the judicial contexts (England and Wales, Scotland and Ireland) in which they operate. Current theoretical debates in the field reflect the different disciplinary knowledge bases on which the authors draw (anthropology, psychology, sociology and law in the main) to inform their understandings of dispute resolution processes and of mediation and family mediation in particular. Theory grounded in the practitioner experience additionally informs these debates. We consider such diversity to be one of the strengths of this book, expanding the exchange of knowledge and understanding particularly in those areas that appear problematic and contested. Anne Barlow and Rosemary Hunter begin by drawing on their socio-legal knowledge base and research to explore the implications of what they term the ‘mainstreaming’ of family mediation by government, designed primarily to offset pressures on an overloaded family justice system. Their research identifies the ways in which those pressures risk distorting, even damaging, mediation’s core principles and possibly safe practice. Damage too to legal principles and the denial of access to justice is a corresponding consequence, exacerbated by the impact of the drastic removal of legal aid in family proceedings other than in the exceptional circumstances of domestic abuse and child protection (Legal Aid, Sentencing and Punishment of Offenders Act 2012). Their analysis reveals how divergent theoretical paradigms give rise to different constructions of meaning, and in particular the ways in which the current neo-liberal ‘remoralisation’ rhetoric – manifest both in government policy and in family law in notions of individual responsibility, autonomy and neutrality – serves an underlying ulterior purpose. This rhetoric masks the political, bureaucratic and costcutting imperatives that, in the context of private ordering, can lead to the co-option and abuse of the values of mediation. This research also highlights the important question about the relevance of legal principles for determining the validity of mediated outcomes, particularly in respect of mutually agreed parental decisions about their children. The chapter by Lesley Saunders develops this theme further by providing a comprehensive historical and contemporary account of the development of the regulatory framework for the professional practice of family mediation in England and Wales. Her analysis draws attention to the three main developmental phases that constitute the evolution thus far of this regulatory framework and of its detailed components. She explores the professional and political tensions and structures that have beset progress – not least the several mediation organisations that make up the Family Mediation Council and the separate accreditation system of the Law Society for family mediators with a legal background. These continue to challenge the goal of a single, clear and robust self-regulatory professional 3

Introduction framework for quality service provision for all family mediators, whatever their profession of origin. Sinead Conneely and Roisin O’Shea explore the evolution of family mediation in Ireland, its significance reflecting the recent rapid social, religious and economic changes in family life and family law, with divorce legally recognised only in 1996. The first publicly funded family mediation scheme in Europe was established in Dublin in 1986 – an independent, community-based scheme providing free mediation on all family issues – and was followed by the expansion of family mediation services throughout the country provided by the state. The Family Mediation Project in 2013 (established by the authors) was set up to provide empirical research to inform public policy and government decision making and support the evolution of quality provision of mediation in Ireland. The Mediation Act 2017 now embodies a public policy endorsement of family mediation and delineates its interaction with the civil justice system. The Act provides for the establishment of the Mediation Council of Ireland as the main regularity body for all forms of mediation, including family mediation. Notwithstanding these achievements, family disputes continue to be dealt with predominantly by lawyers and the courts, generating professional tensions between lawyers and mediators. Since the enactment of the Act, differences of opinion have emerged between those providing family mediation in the legal aid state-sponsored sector and private family mediators, in relation to the enforceability of mediation settlements as provided in Section 11 of the Act. Anne Hall Dick examines the historic, cultural and religious context against which family mediation has developed in Scotland. One of the benefits associated with its small and culturally cohesive community has been a longstanding cooperation among professionals in the fields of law, social work and education. Despite or perhaps because of this close historical collaboration, and the traditionally non-litigious approach of lawyers, separate parallel developments characterise the professional development of family mediation in Scotland, with solicitor mediators being trained and accredited separately from those from other professional backgrounds. Notwithstanding the evolution of separate standard setting and accreditation by Relationship Scotland and the Law Society of Scotland, this chapter highlights the development of their shared approaches to important concerns such as screening for domestic abuse and the inclusion of children in the process. In relation to the civil justice system, statute confers the protection of confidentiality on family mediators accredited by both of these approved family mediation accrediting bodies. Legal aid is available for civil cases and for mediation; and while the courts can refer to mediation, the Scottish Civil Justice Review did not make mediation a central dispute resolution plank, although there is some momentum for change. Lisa Webley’s chapter broadens the scope of focus to explore the ethical implications informing family mediation and its relationship to the formal 4

Introduction legal system. She approaches these issues in three main ways: first, by examining both the underpinning ideologies of dispute resolution and the fundamental values of family mediation; second, by analysing the professional ethics informing family mediation practice, with special reference to neutrality and impartiality; and third, by drawing attention to those ethical dimensions that relate to substantive protections that affect the outcomes of mediation where private norms might clash with official statesanctioned interests, with particular reference to the welfare of children and to vulnerable adults. Her chapter highlights those areas where further reflection could have a positive impact on influencing improvements of practice – such as by expanding theoretical understanding of the concept of mutualism in comparison with adversarialism and partisanship, and by moving away from the terminology and aspirations of ‘neutrality’ towards an ‘active reflexivity’. Her chapter draws attention to ethical conduct as a means of driving both good practice and a reflection of the public expression of the values of the mediation profession. Mediators, and all professionals, must be equipped with the necessary expertise to assist clients – in particular, the professional competence to challenge structural and individual inequalities so as to facilitate negotiations to a positive conclusion, which ethically takes account of the interests and needs of the wider family. Barbara Wilson draws on an extensive academic cross-disciplinary body of literature to inform her chapter on the usages and applications of the concepts of models, styles and third parties in family mediation. She explores the controversies and critiques, and often competing ideologies and practices, that have influenced the evolution of family mediation in the West, and the UK in particular. She argues that the constructions of meanings attached to these concepts are contingent on which theoretical paradigm, determined by its disciplinary origins, is adopted. Her chapter examines the distinctive roles of those who are not direct negotiators in the process, but who may be directly affected by the process and its outcomes – children, wider family members and new partners, and others with an emotional stake in the process. In addition, a variety of professionals – such as financial advisers and lawyers – may become directly or indirectly involved as participants in the process, with inevitable ethical and strategic influences on the parties and on the mediator role. Current issues and debates, informed by some of the early and often most influential literature on the subject, have continuing relevance to evolving theory and practice, leading to fresh understandings as well as disagreements. Family mediation reflects both the richness of this complexity and the simplicity of its fundamental purpose. The significance, nature and relevance of the operation of power in family mediation – both between the parties and in respect of the mediator role – are examined by Marian Roberts. She draws on the rich body of literature to explore how power has constituted the basis of almost all critiques of mediation, whatever their primary focus – whether the politics of informal justice, settlement itself, justice and fairness, autonomy or neutrality. Her 5

Introduction chapter describes the varied, complex and fluid nature of power dynamics, including the various sources of power that can influence negotiations. How best the negative impact of power imbalances can be offset to protect safe and effective practice is considered with reference to research that expands understanding of the core concepts of both neutrality and impartiality. This also illustrates the ways in which theory can valuably inform practice. Her chapter draws attention to the risks of covertly expanded power inherent in some current practices – in particular, in relation to role confusion arising both from attempts to combine mediation with legal, welfare or therapeutic interventions, and from the adoption of hybrid models of practice such as ‘evaluative’ mediation and med-arb. Her chapter argues that only respect for mediation as a distinct and independent dispute resolution process will protect the public and the integrity of the process. Neil Robinson takes the reader into a different realm of contemporary complexities by asking questions about the nature of ‘truth’ in the conversations that the parties bring to family mediation, bringing vividly to life the ambiguities and richness of human interactions and their power dynamics, which are inevitably affected by vulnerabilities arising from family breakdown. These complexities and sensitivities have important practice implications both for robust assessment and screening for suitability and for effective participation in mediation. Theories and processes of mediation and the skills, strategies and qualities of mediators are viewed through the frame of ‘truth’ to propose a deeper, more ambitious approach to the resolution of entrenched family disputes. While family mediators have long agreed on the relevance and importance of the voice of the child in family mediation, the subject has generated considerable debate over the most appropriate ways in which that voice can and should be heard in the context of family mediation. Lesley Allport considers this topic from three main perspectives – the relevant legislative developments that have occurred over the last 30 years of family mediation history in England and Wales; the key research findings concerning children’s own views on the importance of being heard and of participating in the making of decisions affecting them arising from family separation and divorce; and the policy and practice developments that have evolved to address these serious issues in family mediation. She highlights the specific opportunities as well as the limitations of hearing the voice of the child in a process that is not legal, welfare, advisory or therapeutic. The welfare of the child is also at the core of the chapter by Sandra Fenn, Anne-Marie Hutchinson and Angela Lake Carroll. They report on a vital specialist practice of family mediation in the context of child abduction cases. The particular relevance of the legal context in this arena of mediation practice is recognised in the focus of this chapter on the 1980 Hague Convention on the Civil Aspects of International Child Abduction, the 1996 Hague Convention on Parental Responsibility and Protection of 6

Introduction Children and EU regulation. This arena of practice is characterised by high-conflict cross-border disputes over children where national and international treaty obligations are involved, and where the primary focus is on encouraging parents to focus on the best interests of their children. The difficulties and success of mediation in this arena are recognised in the importance that the High Court accords to Reunite, an independent charity and the main provider of child abduction mediation in this country. The chapter describes the history and research relating to the Reunite model of practice: a model that requires working within the strict time limits imposed by Hague Convention court proceedings, the geographic and logistical constraints, and the importance attached to the need – for parents, legal representatives and the court (abiding by the convention for reciprocal international orders) – for carefully drafted memoranda of understanding. It further explores the value and limits of new technologies for enabling mediation to take place across borders where direct face-toface mediation practice is not practicable. Maria Moscati engages with an analysis of the challenges that family disputes in sexually and gender diverse relationships and families pose to the current practice of mediation in England and Wales. She reflects upon empirical data that she has collected during the last years and combines insights from interdisciplinary sources. Her chapter analyses selected features of mediation where it has been adopted to resolve disputes within families based on relationships involving one or more partners who selfidentify as gay, lesbian, bisexual, trans, queer or non-binary (LGBTQ+). In particular, the chapter emphasises the importance of equipping family mediators with specific knowledge concerning language use, domestic abuse, power imbalances and the involvement of children in these families. This suggests the need to adopt a more contextualised approach to family mediation which takes into consideration the impact of structural inequalities, homophobia, transphobia, stereotypes and bias on LGBTQ+ parties and during mediation. The chapter does not deny that there are similarities to be found between different-sex relationships and sexually and gender diverse relationships. However, the history of stigma and discrimination that LGBTQ+ people have had to – and still – face must be acknowledged and taken into account in the resolution of family disputes. This includes making these relationships and families visible on websites, in brochures and in training. With the growth of family mediation, the quality assurance of training and practice has become a central feature of development. Lorraine Bramwell’s chapter focuses on the main objectives and content of quality training in order to incorporate theoretical knowledge, practical skills and personal qualities, both for new practitioners and for continuing professional development. Larger questions are raised about how the profession recruits its members, what makes for a proficient mediator and to what extent current training, assessment and development requirements – including monitoring and support procedures – are sufficient. Given the practical challenges faced by many new mediators, this chapter 7

Introduction highlights the need for high standards of training to realise competence and creativity of practice in pursuit of the objectives of craftsmanship and artistry. In order to meet the complex needs of families in dispute, the chapter explores the question too of how best to achieve effective professional regulation of practice, to ensure the continuing credibility of the profession and the protection of the public. Katherine Stylianou’s chapter on the academic teaching of family mediation reflects her direct experience of family mediation both as a practitioner in the field and as a university lecturer teaching alternative dispute resolution courses to undergraduates. Her approach is informed by understandings of negotiation and mediation that draw in particular on Philip Gulliver’s anthropological empirical research on the subject, but also on other disciplines such as conflict management and resolution, law and psychology – all sources of knowledge that inform understandings of family mediation. Her current course uniquely embraces a practice component (accredited by the College of Mediators) that enables students to combine academic study with vocational training in mediation. The chapter by Andrew Sims presents the reader with a fresh overview of the variety of disputes that involve the family. Sims argues that both the theory and practice of family mediation in England and Wales have developed by focusing on a narrow definition of what constitutes a family dispute. This focus on disputes arising from divorce and separation leaves inadequately explored those broader conflicts and disputes in other family contexts. The chapter starts with a summary of the development of family mediation in England and Wales, and then moves on to analyse the challenges that family mediators face when addressing disputes such as those affecting adult siblings, family inheritance, public law/child protection, medical issues involving children and disputes involving the elderly. Enriched by examples from Sims’ own experience as a family mediator, this chapter – like Moscati’s – calls for a renewed approach to family mediation practice that embraces a broader understanding of the nature of the family and of family disputes. The book concludes with an interview with Tony Whatling which adds a practical dimension to the discussion on domestic abuse and its impact on mediation. Reflecting on his long experience as mediator and trainer, Whatling starts by clarifying the definition of ‘domestic abuse’ that mediators adopt, continues by discussing current governing policy (that of the College of Mediators), and finally moves on to illustrate concrete examples of good practice for mediation. The chapter explores such issues as how to conduct effective screening for abuse including the use of strategic, circular and non-leading questions, and recourse to shuttle mediation. The interview ends with an analysis of case studies with which Whatling has been directly involved. These chapters highlight a potential agenda for future research in several areas of family mediation, including the use of hybrid models, the 8

References impact of the use of interpreters and cultural diversity within mediation – all essential for developing effective family mediation practice. The literature (in particular, Gulliver 1979) highlights the universal heritage of mediation as a process across cultures, historical periods and subject matter. This cross-cultural heritage makes mediation applicable to diverse cultural contexts. Given that the core values of mediation – respect, reciprocity, equity of exchange, the authority to make one’s own decisions – are universal values, the accessibility of mediation to all sections of the community becomes essential. One of the main strengths of mediation’s core principle of procedural flexibility (McCrory 1981) is that – unlike in other dispute resolution processes – there is the potential to respond to consumer choice and need with an innovative adaptability of models and styles of practice. Resort to mediation must therefore respect the categories of meaning regarding family and family disputes by which the parties themselves comprehend their everyday experience (Shah-Kazemi 2000). We hope that this book will encourage further contributions to the teaching and practice of mediation for all families. The development of this book has proved to be an intense, constructive and joyful endeavour. Unfortunately, it has also brought sadness. Paul Randolph, who kindly agreed to contribute a chapter, passed away in 2018. We wish to remember and pay tribute to his invaluable contribution to the teaching and practice of family mediation in the UK.

References Gulliver, PH  (1979) Disputes and Negotiations (London and New York: Academic Press). McCrory, JP (1981) ‘Environmental mediation – another piece for the puzzle’, Vermont Law Review, Vol 6 Issue 1 49–84. Roberts, S and Palmer, M (2005) Dispute Processes: ADR and the Primary Forms of Decision Making, Second Edition (Cambridge and New York: Cambridge University Press). Shah-Kazemi, S (2000) ‘Cross-Cultural Mediation: a Critical View of the Dynamics of Culture in Family Disputes’, International Journal of Law, Policy and the Family, Vol 14, 302–25. Simmel, G (1908) The Sociology of Georg Simmel, trans Wolff, KH (1955) (New York: Free Press).

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Chapter 2

Reconstruction of family mediation in a post-justice world Rosemary Hunter and Anne Barlow

Introduction This chapter examines the changes that family mediation has undergone as a result of the shift in the policy and practice framework in England and Wales from liberal to neoliberal.1 When family mediation first made its appearance in England and Wales in the late 1970s and early 1980s, it was in the context of a declining but still functioning welfare state, within which access to justice was seen as one of the rights attaching to citizenship (Cappelletti 1981). Forty years later, mediation functions in a very different, neoliberal policy context, in which responsibility rests primarily on individuals to sort out their own ‘private’ problems and the state no longer sees itself as having a role in guaranteeing universal access to justice. We are now, we argue, living in a ‘post-justice’ world – one in which access to justice is a commodity which must be paid for like any other, and in which, relatedly, legal standards are no longer regarded as an essential point of reference in the resolution of family disputes. After charting the progress and nature of this policy shift, the chapter systematically analyses its impact on the role and operation of mediation, and in particular on the experience of mediation for parties. In doing so, it pays particular attention to the issues of fairness and justice in family mediation. These terms are susceptible of a range of meanings, so it is important to define them for the purposes of this chapter. In our view, the concepts of fairness and justice in the context of mediation (and other family justice processes) can be understood as lying on a spectrum from thin to thick, from procedural to substantive and from individual to structural. At the thin end of the spectrum lies procedural fairness – a commitment to processes which treat parties impartially and support their participation on the basis of formal equality. Further towards the middle is substantive fairness, which adds a concern that outcomes as well as processes should be fair. The meaning of fairness is contextual, to be assessed by reference to the circumstances of the individual parties, and the outcome should ideally be considered fair by both parties. But fairness also connotes some degree of objective evaluation, so that the outcome would appear to be fair as between the parties to an impartial observer as well. Substantive fairness in this sense may also be a legal

11

Reconstruction of family mediation in a post-justice world standard – in financial remedy proceedings in England and Wales, for example, judges exercise their discretion in redistributing property so as to achieve fairness between the parties.2 To this extent, substantive fairness shades into legal justice, which refers to legal rights and entitlements and the legal principles applicable to the relevant case.3 These might be quite generalised and abstract, such as ‘fairness’ in financial matters and ‘child welfare’ in child arrangements matters. But they may also be much more detailed and specific in the circumstances of particular cases, as judicial discretion in both financial and children’s cases is bounded by particular factors to be taken into account,4 as well as case law applying to particular types of cases.5 At the thickest end of the spectrum lies substantive justice – that is, outcomes which take into account social and economic inequalities such as gender, class and disability, as well as imbalances of resources and power in the parties’ relationship, in order to achieve a result which promotes respect for and the future well-being of both parties and their children. In our book Mapping Paths to Family Justice (Barlow et al, 2017), we articulate a feminist conception of substantive justice which requires that outcomes not perpetuate relationship-generated economic disadvantage, appropriately acknowledge and value ongoing care work, are physically and emotionally safe for both children and parents, and take into account children’s needs in the context of family relationships (Barlow et al, 2017, 8–10). Finally, the chapter turns to the future and considers possible options for mediation, and their consequences for fairness and justice, within alternative policy and practice frameworks. The logical extension of neoliberalism may push mediation further into post-justice – possibly even post-fairness – territory, or may result in mediation becoming available as part of a suite of options only to those who can afford to pay to maximise their chances of fairness and justice. On the other hand, technological innovations or different policy models may help to bring justice back into family mediation in a more widely accessible way. But this would appear to be contingent on a level of public subsidisation which, in England and Wales at least, is not immediately foreseeable.

The road to post-justice Family mediation services (originally known as ‘conciliation’ services) emerged in England and Wales in the late 1970s in response to a perceived need for a means of assisting couples to deal with the consequences of marriage breakdown without acrimony, and, consequently, to help shield children from the damaging effects of post-separation parental conflict (Finer 1974; Parkinson 1986; Piper 1993). These services were set up with altruistic motives by small groups of social science professionals on a largely voluntary basis, with limited charitable funding and no state involvement. These were the early not-for-profit services which were studied by Gwynn Davis and Marian Roberts, Robert Dingwall and 12

The road to post-justice David Greatbatch and Christine Piper during the 1980s and early 1990s (Davis and Roberts 1988; Dingwall and Greatbatch 1991; Greatbatch and Dingwall 1989; Piper 1993). In 1996 the Family Law Act was introduced by the Major government. This clearly neoliberal reform intended to introduce a system of nofault divorce, but its centrepiece was the consensual, conflict-free and responsible (Reece 2003) manner by which the new divorce was supposed to be achieved. Those considering divorce would first attend an information meeting at which they would be informed, inter alia, of the consequences of divorce and encouraged to save their marriages. If they wished to proceed with the divorce, there would be a nine-month period of reflection and consideration during which the parties would make arrangements for their finances and children for the future, followed finally by the grant of a divorce decree. The information meetings aimed to reduce conflict by steering parties who might need assistance making future arrangements towards mediation and away from solicitors.6 This was the first instance of policy backing for mediation, which was to intensify as the neoliberal transformation of the family justice system proceeded. While the 1996 divorce reform proposal was ultimately never enacted, one of its legacies was the incorporation of mediation into the family legal aid scheme. The advent of public funding for mediation in turn led to the growth and wider availability of mediation services, both not-for-profit and private services, and the ranks of mediators were swelled by an increasing number with legal backgrounds, who either switched from law to mediation or added mediation to their services. Over time, requirements hardened for lawyers to refer legally aided clients to mediation as a first (and hopefully last) step, and for those clients to attend a mediation intake session to encourage them to consider trying mediation to resolve their disputes. By the time we conducted our Mapping Paths to Family Justice research in the early 2010s,7 the parties we interviewed clearly perceived that they had no choice but to go to mediation in order to get legal aid for their case (Barlow et al 2017a: 90–94). By that stage, policy support for mediation represented a confluence of interests in saving costs, promoting individual responsibility and displacing lawyers as gatekeepers to family justice.8 The fact that state promotion of mediation was not just about cost saving for the legal aid fund was reinforced by the advent in 2011 of the Preapplication Protocol for Mediation Information and Assessment, introduced as Practice Direction 3A of the Family Procedure Rules. This protocol sought to extend individual responsibilisation9 and the displacement of lawyers (and courts) from legally aided clients to all parties wishing to commence private family law proceedings with respect to their children or finances. Prior to making a court application, potential applicants were henceforth required (with limited exceptions) to first attend a mediation information and assessment meeting (MIAM) to assess the suitability of the dispute and the parties, in all the circumstances, for mediation as an 13

Reconstruction of family mediation in a post-justice world alternative means of resolving the dispute. Failure to attend a MIAM, or to provide evidence of falling within one of the specified exceptions, could result in the court refusing to issue an application. Parties not qualifying for legal aid were also required to cover the cost of the MIAM themselves. This pre-application protocol was subsequently embodied in primary legislation in the Children and Families Act 2014. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) marked the high point in the neoliberal transformation of family justice which had been developing over the previous decade and a half. Under cover of the need for major cuts to the public sector declared by the coalition government in the wake of the global financial crisis, LASPO very specifically sought to limit access to both lawyers and courts in favour of mediation for those with family disputes. It did this by cutting all legal aid for legal representation and court proceedings in private family law matters, with very limited exceptions for some victims of domestic abuse and parents seeking to protect children from sexual abuse. Legal aid remained available for mediation and it was expected that this would effect a wholesale shift in behaviour in family disputes, with people choosing the more cooperative, sensible, cheaper and more childfriendly option of mediation over expensive, protracted and adversarial lawyers and court proceedings. The ‘unintended consequences’ of LASPO are discussed further below. At this point, however, we pause to consider the implications for mediation and for mediation clients of this shift from liberal to neoliberal policy frames. Fundamentally, mediation has moved from being a voluntary enterprise with a welfare ethos to being a central instrument of state policy – effectively being co-opted by the state – with associated elements of power and coercion.

Mediation within liberal and neoliberal frames Here we examine the institutionalisation of family mediation within the justice system of England and Wales10 by contrasting schematically the role and operation of family mediation in liberal and neoliberal frameworks. This discussion involves necessary simplification for heuristic purposes. In practice, dividing lines are never so clear and the situation may appear more complex and nuanced. Nevertheless, we consider it important to tease out the theoretical contrasts in order to understand in detail both the direction of travel and possible future destinations. In terms of the underpinning rationale for mediation, in a liberal frame, mediation is seen as an enlightened option for those wishing to reach cooperative post-separation arrangements for their children and/or finances. Within a neoliberal frame, however, cooperative arrangements transform from an enlightened choice to a positive responsibility for separating couples. Couples are exhorted to remain amicable for the 14

Mediation within liberal and neoliberal frames sake of their children and those who fail to do so face opprobrium. Family mediation is presented as ‘less stressful, with less conflict between you and your partner. If you have children it is less upsetting for them. It can help find ways for everyone involved to get on better in the future’ (Ministry of Justice 2015). Viewed through this lens, not choosing this option risks being seen as irrational, irresponsible and self-centred. The MIAM requirement and government advertising campaigns mean that no one can rely on the excuse of being uninformed about mediation. Thus, a judgement attaches to decisions about dispute resolution: those who go to mediation are judged positively, while those who prefer to go to a lawyer or to court are judged negatively (Douglas 2019; McFarlane 2019). As indicated above, however, the ‘choice’ of mediation is not simply left to people’s sense of social responsibility or conformity. Within a liberal frame, freedom of choice to enter mediation was a central plank of the model. Mediation aimed to promote autonomy and self-determination, and an essential element of that was autonomy and self-determination in the decision to enter mediation in the first place. Within a neoliberal frame, while lip service continues to be paid to the value of autonomy, there is also an emphasis on making the ‘right’ choices, while freedom to make the ‘wrong’ choices is severely constrained. People are strongly ‘nudged’ by means of financial incentives and legislative mandates to attempt mediation. Even before LASPO, as our research found, mediation had become very close to mandatory for legally aided parties. LASPO changed the rules structuring people’s choices, but with the intention of making mediation even more of an imperative. The fact that the new rules – attempting to take lawyers out of the picture as gatekeepers to mediation and replacing them with appeals to parties’ financial and personal selfinterest in resolving their disputes more quickly and cheaply, and with less stress and conflict – turned out to be less effective than the old rules does not detract from their motivation. It is also notable that many mediators now complain that courts do not enforce MIAM requirements strictly enough and have suggested that MIAMs be made compulsory for respondents to court proceedings as well as applicants (National Family Mediation 2018; Parkinson 2016; Kneale 2014). One consequence of the shift from freely chosen to quasi-mandatory mediation is that the market positioning of family mediation has also changed. Within a liberal frame, family mediation was a relatively niche service available to parties whose level of conflict (relatively low) and remaining trust (relatively high) made them suitable candidates for the process (Davis, 2001). Within a neoliberal frame, family mediation has become (or was intended to become) a much more mass service, encompassing parties with higher levels of conflict, power imbalances and vulnerabilities, and lower levels of trust and inherent cooperation. Certainly, mediators in the wake of LASPO observed that parties were arriving for MIAMs less informed about mediation and less pre-screened for suitability than had been the case when they were initially seen and referred by a solicitor (Bloch et al, 2014: 15). In response, there is evidence 15

Reconstruction of family mediation in a post-justice world that at least some mediation services have become less ‘pure’ about issues such as suitability and screening for mediation – either because they feel that mediation remains a better option than self-representation in court (ibid: 16–18) or because of business imperatives driving services to accept a wider range of cases in order to maintain the flow of clients cut off by the cessation of legal aid-mandated solicitor referrals (Hunter 2014). In addition, insufficient time for screening where clients are legally aided, and in some cases the practice of joint MIAMs, mean that issues such as domestic abuse and controlling dynamics in the parties’ relationships are insufficiently explored and cases are assessed as suitable for mediation on the basis of inadequate information (Morris 2013; Barlow et al 2017: 96–105). However, the change in the profile of mediation clients has further consequences. Within a liberal frame, the key role of mediation was to provide a fair process within which communication between equal parties could be facilitated in order to enable them to find common ground and arrive at their own mutually agreed arrangements. The mediator ensured procedural fairness by setting and holding the parties to ground rules for turn taking, equal participation and mutual respect, and by maintaining strict impartiality between them. Within the neoliberal frame, however, it is much more difficult for mediators to achieve procedural fairness. When cases involving controlling and abusive relationships or other significant power imbalances are accepted into mediation rather than being screened out, mutual respect is lacking and maintaining impartiality does not guarantee equal participation. Long-standing fear, control, manipulation and domination are not overcome by giving people equal time in a mediation session; neither are they overcome simply by placing people in different rooms and shuttling between them. In these situations, the more vulnerable party is unable to advocate effectively for himself or herself and the process simply perpetuates the existing power dynamic. While mediators may recognise that in this situation it is necessary to provide some level of support to the weaker party in order to attempt to level the playing field, in many cases it is beyond the capacity of one or even two mediators to manufacture equality. Several of our interviewees in this situation had very poor experiences of mediation in which procedural fairness was clearly lacking. They experienced the process itself as abusive and the outcomes of those mediations reflected the interests of the dominant party (Barlow et al 2017: 104–7). This observation leads to the question of outcomes more generally. Within the theory of mediation in a liberal frame, party autonomy in determining outcomes is the paramount value (Family Mediation Council para.  2.1). The aim of procedural fairness is to promote this autonomy, requiring the mediator to remain neutral as to the outcomes agreed by the parties (ibid: 6.2). In practice, mediator neutrality has long been questioned and our own and earlier research has explored the extent to which mediators may seek to influence the outcomes of mediation by reference to personal values, child welfare knowledge, 16

Mediation within liberal and neoliberal frames conceptions of substantive fairness and/or consciousness of legal norms (Greatbatch and Dingwall 1989; Piper 1993; Barlow et al 2017a). For the purposes of the current discussion, however, the key point is that the changing profile of mediation clients also puts considerably greater pressure on the practice of mediator neutrality. If the mediator maintains neutrality where parties are not in an equal bargaining position, then as indicated above, outcomes may be the product of power relations, representing the unilateral autonomy of the dominant party imposed on the vulnerable party, rather than a product of mutual agreement. And as a result, they may leave the vulnerable party and their children significantly worse off – with unsafe contact arrangements, shared parenting arrangements which expose then to ongoing conflict and harassment or financial arrangements which do not meet their financial needs. On the other hand, if a mediator intervenes to head off an evidently unfair outcome or to steer the parties in the direction of legal justice – which we also observed in our study (Barlow et al 2017: 198– 200)– he or she is no longer maintaining neutrality. In our view, the latter is very clearly the lesser of two evils; however, the issue remains that the neoliberal frame considerably exacerbates the inherent tension within family mediation between neutrality and normativity. Moreover, this tension can no longer be deflected by virtue of mediation’s institutional position. Within the liberal frame, family mediation formed part of the family justice ecosystem, which also encompassed solicitors and the courts. Mediation did not function in isolation, but was very often supplemented by legal advice before and after mediation, and sometimes also during the course of it (Maclean 2010). Parties might self-refer to mediation, but they more typically consulted a solicitor initially and would then be referred to mediation. Legal advice after mediation included work to convert mediation agreements into court orders made by consent in financial cases or, if matters remained partially or wholly unresolved after mediation, further attempts at resolution, which might be aided by the issuing of a court application. Within the neoliberal frame, however, the family justice system is fragmented and mediation is positioned in competition with solicitors and courts. Legal aid provision seeks to weight that competition in favour of mediation and places barriers to access to solicitors and courts. The consequence for parties without the means to pay for a solicitor is that they have much less access to legal advice both before and after mediation. While legal aid is still technically available to convert mediation agreements into consent orders, the rate of payment is so minimal that few solicitors are prepared any longer to undertake this work. This, in turn, has consequences for the extent to which legal principles play a role in family mediation. As noted above, within the liberal frame, parties very often entered mediation armed with knowledge of their legal position provided by prior consultation with a solicitor, and their solicitor would also advise them if the agreement they reached in mediation fell short of what they might expect to achieve in court. In addition, we found in our 17

Reconstruction of family mediation in a post-justice world research that mediators very often were conscious of the parameters or the ‘band of reasonableness’ within which a court might, in the exercise of its discretion, decide the particular case. They might also provide the parties with general legal information, including information about what courts had considered to be fair and appropriate outcomes in similar circumstances. We found this to be equally true of mediators from legal and non-legal backgrounds. The distinction in practice was less between lawyer and non-lawyer mediators as between financial and children’s matters: the former tended to be more informed by legal principles, while the latter were more informed by child welfare knowledge under the broad umbrella of ‘the best interests of the child’. If parties started heading towards an agreement that was outside the parameters of legal justice, as well as giving information, mediators might also explore other options, reality test and discuss the practical implications, recommend legal advice and/or flag their concerns to the parties’ solicitors in the memorandum of understanding drawn up at the conclusion of the mediation process (Barlow et al 2017: 187–92). Within the fragmented family justice system now existing within the neoliberal frame, there is much less capacity for legal principles to inform mediation outcomes. With pre- and post-mediation legal advice from a solicitor now effectively unavailable to legally aided parties, sole responsibility rests on the mediator to educate parties about the law and consider the extent to which agreements reflect legal principles, in circumstances in which they must also negotiate the tension with neutrality and can only give legal information rather than advice. Thus, while standards of legal justice may continue to inform family mediation, depending on the views and practices of the individual mediator or the mediation body with which he or she is affiliated, there is no mechanism within the neoliberal frame which is specifically designed to bring legal principles to the attention of the parties in family mediation or to encourage them to reach agreements in conformity with those principles. The fact that such a mechanism (in the form of solicitors acting as a supplement to mediation) was considered dispensable is a clear indicator that we have entered the post-justice world, with family mediation now occupying a ‘delegalised space’ (Hitchings 2017). The remaining factor in contrasting mediation within liberal and neoliberal frames is that of substantive justice, as defined in the introduction to this chapter. In this respect, the contrast (as in relation to neutrality in practice) is more between two degrees of absence than between presence and absence, since substantive justice has never been an aspiration of either family mediation or the family justice system more generally. Within the liberal frame, mediation outcomes embodied substantive justice only to the extent that substantive justice coincided with legal justice and that influenced the parties’ agreement. Such outcomes might include agreements which recognised and responded to parties’ differential financial needs arising from the division of labour within their relationship, or which reflected children’s wishes, security and established 18

Looking to the future attachments. Our research showed that these kinds of agreements, although they were sometimes achieved in mediation, generally did not arise as a result of parties’ own background conceptions of a fair outcome, but rather depended on some form of practitioner intervention to promote legal principles (Barlow et al 2017: 198–200). Within the neoliberal frame, as noted above, there is much less chance of legal justice influencing parties’ agreements and hence even less chance of substantive justice being achieved.

Looking to the future Despite policy backing for family mediation, the expected shift in dispute resolution behaviour following LASPO did not occur. Rather, in the absence of solicitor referrals to mediation in compliance with the Legal Aid Funding Code, publicly funded MIAMs and mediation starts fell, according to the latest statistics, to around one-third and less than one-half of pre-LASPO levels respectively (Ministry of Justice and Legal Aid Agency 2018). Government efforts to boost mediation after LASPO, including publicity drives and further modest financial incentives,11 appear to have had little impact. Questions about the future of mediation therefore remain live and, from the perspective of mediation services, pressing. In this section we consider several possible future directions for family mediation in England and Wales. One possibility would be for mediation to become mandatory prior to the commencement of court proceedings in all family law cases. This would extend the policy direction in relation to mediation to its logical conclusion. In our view, however, this is unlikely to occur within the neoliberal frame. The neoliberal preference is to nudge, encourage, incentivise and responsibilise, but not generally to coerce unless a criminal offence has been committed. Neoliberalism may be neo, but it is also liberal rather than dictatorial or repressive, and thus it retains some level of commitment to individual autonomy. People should make the ‘right’ choices, but they should still be recognisable as choices. Furthermore, who would pay for the extra mediation? The state may be willing to bear some of the additional cost, but neoliberalism is also committed to minimising public expenditure and public sector cuts are ongoing, so a major injection of funds into mediation is implausible. It would also be difficult to justify making mediation compulsory and at the same time require people to pay for it themselves. This could not only spark a backlash, but also raise human rights concerns, as access to family courts and the right to a fair trial12 would be blocked by a mandatory threshold process which many people could not in practice afford. According to the Family Mediation Task Force, at least some people ineligible for legal aid are now choosing to go to court as litigants in person rather than undertaking mediation because mediation costs more or is perceived as not offering value for money (particularly in terms of the ability to obtain a binding order) (Norgrove 2014: 16–17). 19

Reconstruction of family mediation in a post-justice world Apart from the reasons why mandatory mediation is unlikely to be adopted, there are a range of reasons, in our view, why it ought not to be adopted.13 As suggested, mandatory mediation is destructive of party autonomy – one of the core values of mediation within the liberal frame. Further, arguments based on mediation’s superior qualities (a better, nonadversarial process; better for children; agreements more likely to stick) are difficult to sustain in a mandatory context. These qualities are achieved in the liberal frame because the parties who are suitable for and undertake mediation are capable of communication, child-centred and motivated to agree. In other words, the parties are attracted to the ethos and therefore benefit from it. However, the process is unlikely to transform people who do not share these qualities. People who are incapable of communication, at war with each other or entrenched in self-interest are less likely to reach enduring agreements (Hunter et al 2014; Barlow et al 2017a; Pereira et al 2016), in which case mandatory mediation is a waste of time and money. Moreover, as discussed above, in the neoliberal frame, procedural fairness is at risk, legal standards are more difficult to maintain and substantive justice outcomes are less likely to occur. Making mediation mandatory would only intensify these undesirable features. A second possible extension of neoliberal policy shifts would be the removal of all public funding for mediation. In this scenario, rather than being the subject of state subsidies, mediation would compete in the market with other providers of dispute resolution services. This is effectively what already occurs for people who are above the means threshold for legal aid, although they are still subject to the requirement to attend a MIAM before initiating a court application. (This requirement, however, has had little effect in boosting the numbers entering mediation (Hamlyn, Coleman and Sefton 2015). Only a minority of couples going to court have undertaken a MIAM (Moore and Brookes 2017), due to the high rate of eligibility for exemptions from MIAMs among the court population and respondents’ refusals to engage with the process, in addition to which MIAMs at this stage do not necessarily convert to mediation starts.)14 The likely consequences would be that less well-off clients who were unable or unwilling to afford mediation would, as at present, spend their limited funds on a small amount of legal advice and/or go to court as litigants in person. Mediation would revert to its position prior to the advent of legal aid funding: a niche service and a commodity available mainly to relatively well-resourced clients who wish to avoid court and take a cooperative approach to post-separation arrangements. This is also the current position in relation to collaborative law, although mediation is likely to be more generally affordable than collaborative law. For the wealthiest clients, our research found lawyers tailoring dispute resolution packages to meet their particular circumstances, blending legal support, mediation and/or collaborative law with counselling, financial advice and any other services they might need. Within this possible future, family mediation would regain its original liberal framing – but only for those who could afford to pay. 20

Looking to the future The third set of future possibilities involves technological supplements to mediation which may make it more attractive to and suitable for more people. As discussed above, one of the things lost in the shift from the liberal to the neoliberal framing of mediation was the role of lawyers in helping to prepare clients for mediation, in terms of giving legal advice, explaining the process and making initial assessments of clients’ suitability. The absence of this kind of preparation in turn means that people may have less faith in the ability of the process to provide procedural fairness. New technologies and technological systems, while not directly replacing lawyers or the services they provide, may offer alternative ways of preparing clients for mediation, and hence of overcoming the kinds of fears and concerns that might prevent people from considering mediation. One of the clear findings of our research was that lack of emotional readiness was a major reason for rejecting mediation, and also a reason why people might have had poor experiences of mediation and/or were unable to reach an agreement (Barlow et al 2017: 92, 110, 126–7; Barlow et al 2017a: 6–8). When relationships break down, it is very often the case that the breakdown occurs asymmetrically between the parties. One of the parties has known for some time that the relationship is over, while the announcement of this comes as a complete surprise to the other party. Consequently, the parties are likely to be at different stages in the grieving process over the breakdown, and while one of them wants to make postseparation arrangements and move on with a new life, the other is not yet emotionally ready to do so. For a party feeling raw, confused and overwhelmed, unable to take in information or to make decisions, any attempt at dispute resolution has a poor prognosis. Yet this was a matter which appeared to be largely unaddressed in screening processes prior to mediation or in mediation itself. In Creating Paths to Family Justice, a follow-up project to the Mapping Paths to Family Justice study, work was undertaken with the relationships organisation OnePlusOne to develop an online tool to help people to gauge their emotional readiness to engage in negotiation with their ex-partner to resolve post-separation disputes. The tool poses a series of questions and classifies the answers using a traffic light indicator – red, amber or green – which can be used to inform mediators and the parties themselves about the appropriateness of mediation at that time. While green shows readiness to mediate and red means mediation is clearly unsuitable, amber indicates that the party is not yet emotionally ready, although could become so. However, the nature of the support that may be needed to enable the party to become emotionally ready could be problematic. If it is simply a matter of time to move on through the grieving cycle, then delaying mediation is relatively straightforward. But if the party requires counselling or other interventions to address emotional issues, the question of cost arises again. Without the prospect of publicly funded counselling, those who are unable to pay for their own treatment may be unable to benefit. 21

Reconstruction of family mediation in a post-justice world The provision of online information about the law, processes and dispute resolution options for people with family disputes has proliferated since LASPO; however, there are serious limits to the extent to which lay people can be expected to locate relevant information, assess its quality and reliability, and apply general information to their own particular situation (Barlow et al 2017a: 11–13; Trinder et al 2014: 84–92). Online interactive guided pathways are likely to be more useful. These take users through a series of steps, with the next step depending on the answer/s given at the previous step, so that only information relevant to the particular party is delivered and the boundary between information and advice breaks down. The OnePlusOne emotional readiness tool is one form of interactive guided pathway which leads to an assessment of emotional readiness to negotiate; but interactive guided pathways can take parties much further, producing, for example a divorce petition or a proposed parenting plan, separation plan or draft agreement that can be put to the other party. A  potential virtue of guided pathways is that they can incorporate legal information/advice and legal principles, and thus offer a more justicefocused process than mediation in a neoliberal frame. The most advanced interactive guided pathway for the resolution of family disputes, the Rechtwijzer 2.0, was developed under the auspices of the Dutch Legal Aid Board. It was cutting edge in two important respects. First, it took users through the dispute resolution processes from beginning to end, offering different options and support as appropriate, beginning with initial screening and identification of issues, progressing to negotiating an agreement directly between the parties or, if that failed, bringing in the assistance of a mediator, with finally a check by a lawyer of the agreement reached. Second, it sought to engage both parties in the online dispute resolution (ODR) process, rather than being directed at a single user only. In England and Wales, Relate commenced developing its own version of the Rechtwijzer, and the Creating Paths team worked with Relate in particular to strengthen the initial screening and diagnosis section, incorporating considerations of emotional readiness and a more sophisticated approach to identifying high-conflict cases, cases affected by domestic abuse and/or coercive control and other negotiation hazards, and consequential risk assessments. Such a model of ODR has the potential to give parties informed choices, to signpost those for whom mediation is not suitable to other sources of support, to enhance procedural fairness where parties are communicating at a distance and at least partially in writing and without time pressures, and to incorporate legal information/ advice and principles into the process. The Creating Paths project also explored the ways in which children’s voices could be incorporated into ODR (Barlow et al 2017a: 18–22). The Rechtwijzer 2.0 was discontinued, however, due to its inability to become self-sustaining (Smith 2017: 27). While it was initially subsidised by the Dutch Legal Aid Board, this was in the context of the Board’s own neoliberal agenda to cut the costs of legal aid by directing funds away from lawyers and towards self-help services and out-of-court resolutions. 22

Looking to the future Consequently, it was not willing to invest large sums on an ongoing basis in this form of service provision. Rather, it relied on its private sector project partners – HiiL (a Dutch not-for-profit research institute) and Modria (a US software company) – to make the Rechtwijzer a paying proposition, which they were unable to do. The main reason for this was that they were unable to generate the level of uptake required to bring in sufficient funds from fees charged to users for the mediation and legal review elements of the service. In turn, a significant reason for low uptake was the perennial problem encountered in relation to offline mediation discussed above: the problem of engaging the ‘other party’. So the move from a single user guided pathway (as the first version, Rechtwijzer 1.0, had been) to a full-blown, two-party ODR process introduced exactly the same dilemmas as already identified. Mediation needs to be either heavily publicly subsidised and/or made mandatory – with inevitable losses of values – in order to be widely sustainable; otherwise, it becomes a niche service available to the relative few who are willing and able to pay for it. The development of the Relate Rechtwijzer was shelved for very similar reasons. Relate was unable to devise a business model which would make the system self-sustaining at a price point that enough people would be willing to pay (ibid: 28–9). In the words of Maurits Barendrecht, one of the directors of HiiL, ‘We just do not yet know whether an ODR system, used by two parties in a conflict, can exist as an independent service, offered by the market. Until now, it has not emerged’ (ibid: 24). A  new version of the Rechtwijzer 2.0, ‘Justice42’, is now continuing to explore this question and the Dutch Legal Aid Board maintains its interest in combining in-house guided pathways with ‘products and services offered by commercial service providers’ (Van Zeeland 2018). But although the Legal Aid Board will pay fees to commercial providers for users eligible for legal aid (as currently occurs for mediation in England and Wales), those providers are solely responsible for maintaining the commercial viability of their services. One possible way forward in England and Wales might be the development of an online guided pathway as a supplement to mediation, which would incorporate legal information/ advice, sophisticated screening and diagnosis, assessment for legal aid eligibility and signposting to appropriate support services if required. As an information, assessment and intake process, this could even replace MIAMs with a free service which offered parties greater choices, and might therefore enjoy a higher level of engagement and function more effectively as a mandatory pre-court process as well as a preliminary to mediation. The final possible future for mediation draws on developments in Australia, where new models of mediation have been implemented which aim to directly address – rather than ignore, minimise or screen out – the issue of domestic abuse, given that it is so prevalent among the separating population, and particularly among the separating population who might otherwise end up in court. Rather than assuming that mediation will automatically offer a better process than court proceedings and being 23

Reconstruction of family mediation in a post-justice world unconcerned about the justice of any agreements reached (as our research found in England and Wales), these models set out to make sure that mediation offers a better process for both parties and produces outcomes that are fair and safe for all family members.15 Relationships Australia Victoria’s Family Safety Model operates in conjunction with its mediation service. Any client assessed at intake as being affected by domestic abuse is referred to an in-house specialist family safety practitioner who undertakes a comprehensive safety, risk and psychosocial assessment for all family members, develops a joined-up case management plan in collaboration with family members (which is revised throughout the period of support), and then coordinates the provision of services or interventions to meet each family member’s ongoing safety, trauma recovery and legal and nonlegal support needs, whether provided in-house or by external agencies. Where external agencies are involved, the practitioner uses pre-existing contacts and makes so-called ‘warm’ referrals,16 and actively helps with transitions between services to ensure no one falls through the gaps. The result is a continuum of services being provided to family members over an extended period of time, with the aim being to increase the overall responsiveness of the service to the family’s multiple needs and ensure safety and recovery long-term (Relationships Australia Victoria 2018). Victoria Legal Aid’s Legally-Assisted Family Dispute Resolution (LAFDR) service focuses on enabling vulnerable parties who would otherwise be deemed unsuitable for mediation to participate in out-of-court dispute resolution with the assistance and support of a specialist lawyer who understands the dynamics of domestic abuse and is willing to take a trauma-informed and non-adversarial approach. As was previously the case in England and Wales, parties in receipt of legal aid must be assessed for suitability for mediation before commencing court proceedings. An initial, detailed risk assessment by the mediation service identifies the need for legal assistance and both parties are provided with a lawyer from the separate legal services participating in the scheme. Prior to the first mediation session, each lawyer consults with his or her client by telephone to provide information and advice, discuss options, manage expectations and take instructions, and careful safety planning for mediation is also undertaken. Shuttle mediation is conducted with each party supported by his or her lawyer, who assists in maintaining focus on children’s welfare and containing conflict, ensures that the client has a voice and can address all the issues important to him or her, and reality tests proposals. Empowerment of vulnerable clients is seen as a crucial precondition to reaching safe, child-focused arrangements, and this often involves small steps, putting in place and testing interim arrangements and then returning if necessary. The scheme enjoys a high rate of agreements; however, if no agreement is reached, the lawyer does not continue to act, but the clients are given advice about options and referred to other sources of support.17 Both of these models emphasise procedural fairness and adapt the traditional mediation process in order to achieve it. They also recognise that parties may need to be supported to exercise their autonomy and 24

Conclusion put the necessary supports in place. There is a clear commitment to addressing legal needs, ensuring that legal principles inform outcomes and realising substantive justice. The difficulties once again relate to resourcing. Relationships Australia Victoria funds the Family Safety Model by means of the creative deployment of its own internal resources, including a significant element of federal funding provided for mediation services and men’s behaviour change programmes. The Family Safety Model offers enhancements to these services which are made possible by the resources, flexibility and economies of scale available to a large organisation. In England and Wales, Relate might be similarly situated; but few other mediation services would be in a position to provide free add-ons of this nature, so either parties or the state (or some combination of the two) would be required to bear the cost. The LAFDR model may offer more promising funding prospects in England and Wales, since some proportion of the people who could benefit from it are already eligible for legal aid for legal representation and court proceedings by virtue of being victims of domestic abuse. Since the aim of the LAFDR is to enable people in this category to reach safe and supported agreements without having to go to court, cost savings on representation in court could be used to fund representation in the mediation process for the other party as well. The model does require specialisation by all professional participants, including a good understanding of the dynamics of domestic abuse and coercive control, knowledge of trauma-informed practice and commitments to the empowerment of vulnerable parties, a non-adversarial process and fair and safe outcomes. In the Australian model, the participating legal services are block funded by the legal aid agency and are considered to be cost effective. Where neither party is eligible for legal aid, the mediation services charge a relatively modest fee on a sliding scale, depending on client means. Moreover, provision of a lawyer for mediation makes the process more attractive to both parties and is particularly effective in securing the engagement of the second party.

Conclusion The major effect of the post-justice approach to mediation is that for those who cannot afford to pay for legal advice, participation in mediation may be disconnected from any form of justice or even procedural fairness, while engagement with justice can be achieved only by going to court as a litigant in person. The statistics indicate that the neoliberal framework has not served legally aided mediation well, although private mediations – anecdotally at least – are still flourishing and may commonly be combined with legal advice and formalisation of the agreement through a consent order where appropriate. In order for mediation to extend its reach by both appealing to and catering for a wider constituency of those with limited means – either eligible for legal aid or just above the legal aid threshold – some combination 25

Reconstruction of family mediation in a post-justice world of technological and legal enhancement would appear to be necessary. The experience to date suggests that technology in the form of guided pathways is more likely to function effectively as a supplement to than as a substitute for mediation. But if such pathways incorporate comprehensive assessment, family justice principles and signposting to other support needed to assist parties, they could operate to encourage more parties to attempt mediation. And in relation to vulnerable parties, the Australian approach would seem to provide the best way forward in guaranteeing procedural fairness, substantive legal support and the preservation of party autonomy – and maybe even the possibility of substantive justice.

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Endnotes

Endnotes 1 While both liberalism and neoliberalism have their roots in classic nineteenth century laissez-faire economics (eg, Smith (1776)), liberalism in the twentieth century came to recognise the need for and value of social justice, accepting state intervention and the development of welfare states as a means to achieving freedom from poverty, which unfettered capitalism had engendered and ignored. Neoliberalism is the resurgence in the late twentieth and early twenty-first centuries of free market liberalism based on the ideas of, for example, Hayek (1994, 1960, 1973–79), which challenged the underpinnings of Keynsian economics and state interventionist measures, advocating a return to a pure market-driven approach alongside the rolling back of the state, the subjection of state entities to market disciplines, and demands that individuals take responsibility for their own economic and social welfare. In recent times, policy initiatives reveal a clear move from a liberal to a neoliberal approach to regulatory governance, an illustration of which is legal aid reform under the LASPO Act 2012 described in this chapter. For a more sustained account of the neoliberal ‘turn’ in family justice, see Barlow et al (2017). 2 White v White [2000] UKHL 54, [2000] 1 AC 596. 3 ‘Justice’ in a legal context may also be understood to refer to state-sanctioned third-party determination as opposed to joint party determination. However this is not the meaning we adopt in this chapter. Rather, we use the concept of ‘justice’ in its more abstract, philosophical sense. See, in particular, Fraser (1997, 2009). 4 Children Act 1989 ss 1(2A), 1(3); Matrimonial Causes Act 1973 ss 25, 25A. 5 For example, in financial matters, cases involving ‘big money’, ‘small money’, ‘special contributions’, prenuptial agreements, business assets, short marriages; in children’s matters, cases involving domestic abuse, relocation. 6 For a concise account and review of the literature on the role of information meetings and the promotion of mediation in the proposed divorce reform, see Herring, Probert and Gilmore (2015) 203–7. 7 The research was funded by the ESRC, Grant Reference No ES/I031812/1 (2011–14). 8 The anti-lawyer element of neoliberal family justice policies has been extensively analysed elsewhere; for a summary of the literature, see Hunter (2017). 9 The term ‘responsibilisation’ refers to processes by which individuals are ‘nudged’, encouraged or compelled to take individual responsibility for their own welfare rather than relying on state support or interventions. 10 Mediation as a process has, of course, been widely adopted and performed a variety of functions – institutional or otherwise – in other societies at other times. See, for example, Auerbach (1983). 11 A  Family Mediation Task Force was established, but among its several recommendations, the only one accepted by the government was to pay the cost of MIAMs for both parties if either party is eligible for legal aid: see Norgrove (2014). 12 European Convention on Human Rights, Article  6. Meaningful access to courts could also be argued as necessary in some cases to secure the enjoyment of substantive rights under Article 8, the right to respect for private and family life. See R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. 13 For summaries of arguments against compulsory mediation, see Stylianou (2018) Salem (2009) Roberts (2006) Grillo (1991). 14 See Cafcass and Women’s Aid (2017) 55–7. 15 Under s  60I of the Australian Family Law Act 1975, introduced in 2006, parents must attempt ‘family dispute resolution’ prior to lodging a court application, although this is subject to a number of exceptions in s 60I(9), including applications for consent orders, and where there are reasonable grounds to believe that there has been child abuse, family violence or a risk of either of these occurring. The concept of ‘family dispute resolution’ is wider than mediation and covers the dispute resolution models described here. 16 A ‘warm referral’ is where the referrer, rather than simply giving the recipient details of another service provider whom they can contact, actively makes contact with the other service provider on behalf of the recipient, accompanies the recipient to the other service and personally introduces him or her to the provider.

27

Reconstruction of family mediation in a post-justice world 17 Hunter and Choudry (2018); Australian Law Reform Commission, Review of the Family Law System (ALRC, 2019) chapter 8. The ALRC’s report cites a settlement rate for Victoria  Legal Aid’s LAFDR programme of 83 per cent: para  8.35. A  further (more elaborate) model of legally assisted mediation incorporating domestic abuse support workers for both parties, known as coordinated family dispute resolution, was also trialled in Australia from 2010–12, but not proceeded with. See Kaspiew et al (2012) and Field (2016).

28

References

References Auerbach, J  (1983) Justice Without Law: Resolving Disputes Without Lawyers (New York: OUP). Barlow, A, Ewing, J, Hunter, R  and Smithson, J  (2017) Creating Paths to Family Justice: Briefing Paper and Report on Key Findings (Exeter: University of Exeter). Barlow, A, Hunter, R, Smithson, J and Ewing, J (2017a) Mapping Paths to Family Justice: Resolving Family Disputes in Neoliberal Times (London: Palgrave Macmillan). Bloch, A, McLeod, R and Toombs, B (2014) Mediation Information and Assessment Meetings (MIAMs) and Mediation in Private Family Law Disputes: Qualitative Research Findings (London: Ministry of Justice). Cafcass and Women’s Aid (2017) Allegations of Domestic Abuse in Child Contact Cases (London: Cafcass and Women’s Aid). Cappelletti, M (1981) Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies (Dobbs Ferry, New York: Oceana). Davis, G and Roberts, M (1988) Access to Agreement: A Consumer Study of Mediation in Family Disputes (Milton Keynes: Open University Press). Davis, G (2001) ‘Reflections in the aftermath of the family mediation pilot’ Child and Family Law Quarterly, Vol 13 371–83. Dingwall, R and Greatbatch, D (1991) ‘Behind closed doors: A preliminary report on mediator/client interaction in England’ Family and Conciliation Courts Review, Vol 20 291–303. Douglas, A  (2019) ‘The Child Arrangements Programme’ Family Law, Vol 49 45–47. Family Mediation Council (2018) Code of Practice for Family Mediators (v 1.3) (London: FMC), accessed online at www.familymediationcouncil.org. uk/wp-content/uploads/2018/05/FMC-Code-of-Practice-May-2018.pdf on 24 September 2019. Field, R  (2016) ‘A  call for a safe model of family mediation’ Bond Law Review, Vol 28 83–88. Finer, M  (1974) Recommendations of the Finer Report on One Parent Families (Cmnd 5629) (London: HMSO). Fraser, N (1997) Justice Interruptus: Critical Reflections on the Postsocialist Condition (New York: Routledge). Fraser, N  (2009) Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press). 29

Reconstruction of family mediation in a post-justice world Greatbatch, D  and Dingwall, R  (1989) ‘Selective facilitation: Some preliminary observations on a strategy used by divorce mediators’ Family Court Review, Vol 28 53–64. Grillo, T (1991) ‘The mediation alternative: Process dangers for women’ Yale Law Journal, Vol 100 1545–610. Hamlyn, B, Coleman, E  and Sefton, M  (2015) Mediation Information and Assessment Meetings (MIAMs) and Mediation in Private Family Law Disputes: Quantitative Research Findings (London: Ministry of Justice). Hayek, F (1944) The Road to Serfdom (Abingdon-on-Thames: Routledge Press). Hayek, F  (1960) The Constitution of Liberty (Chicago: University of Chicago Press). Hayek, F (1973–79) Law Legislation and Liberty (Chicago: University of Chicago Press). Herring, J, Probert, R, and Gilmore, S (2015) Great Debates in Family Law 2nd Edn (London: Red Globe Press). Hitchings, E  (2017) ‘Official, operative and outsider justice: The ties that (may not) find in family financial disputes’ Child and Family Law Quarterly, Vol 29 359–78. Hunter, R, Barlow, A, Smithson, J and Ewing, J (2014) ‘Mapping paths to family justice: Matching parties, cases and processes’ Family Law, Vol 44 1404–411. Hunter, R (2014) ‘Exploring the LASPO gap’ Family Law, Vol 44 660–63. Hunter, R (2017) ‘Inducing demand for family mediation – before and after LASPO’ Journal of Social Welfare and Family Law, Vol 39 189–202. Hunter, R and Choudhry, S (2018)‘Conclusion: International best practice’ Journal of Social Welfare and Family, Vol 40 548–62. Ingleby, R (1993) ‘Court-sponsored mediation: The case against mandatory participation’ Modern Law Review, Vol 56 441–51. Kaspiew, R, De Maio, J, Deblaquiere, J and Horsfall, B (2012) Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report (Melbourne: Australian Institute of Family Studies). Kneale, D, Sherwood, C, Sholl, P  and Walker, J  (2014) Engaging Both Parties in Mediation Within a Changing Funding Climate: Perspectives From Relate Mediators (London: Relate). 30

References Maclean, M (2010) ‘Editorial – family mediation: Alternative or additional dispute resolution?’ Journal of Social Welfare and Family Law, Vol 32 105–6. McFarlane, A  (2019) ‘Living in Interesting Times’, Resolution Conference 2019 Key Note Address, accessed online at www.judiciary. uk/wp-content/uploads/2019/04/Resolution-Key-Note-2019-final.docx-8APRIL-2019.pdf on 24 September 2019. Ministry of Justice (2015) Family mediation: Sorting out family disputes without going through court (London: Ministry of Justice). Ministry of Justice and Legal Aid Agency (2018) Legal Aid Statistics Quarterly, England and Wales, January to March 2018 (London: MoJ and LAA). Moore, A and Brookes, S (2017) ‘A worthy idea, failing in delivery’, Fam Law Week 31 October 2017, accessed online at www.familylawweek.co.uk/ site.aspx?i=ed182325 on 24 September 2019. Morris, P (2013) ‘Mediation, the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 and the Mediation Information and Assessment Meeting’ Journal of Social Welfare and Family Law, Vol 35 445–57. National Family Mediation (2018)  LASPO post-implementation review: Submission by National Family Mediation, accessed online at www. nfm.org.uk/wp-content/uploads/2019/09/LASPO-review-submissionSept-2018.pdf on 24 September 2019. Norgrove, D (2014) Report of the Family Mediation Task Force (London: Ministry of Justice). Parkinson, L (1986) ‘Conciliation in Britain’ Mediation Quarterly, Vol 11 69–70. Parkinson, L (2016) ‘Expanding the model without breaking the mould: Developing practice and theory in family mediation’ Family Law, Vol 46 110–16. Pereira, I, Perry, C, Greevy, H and Shrimpton, H (2016) The Varying Paths to Justice: Mapping Problem Resolution Routes for Users and Non-users of the Civil, Administrative and Family Justice Systems (London: Ministry of Justice). Piper, C  (1993) The Responsible Parent: A  Study in Divorce Mediation (London: Harvester Wheatsheaf). Reece, H (2003) Divorcing Responsibly (Oxford: Hart Publishing). Relationships Australia Victoria (2018) Review of the Family Law System: Discussion Paper – Submission by Relationships Australia Victoria (Melbourne: RAV, 2018), accessed online at www.alrc.gov.au/wp-content/ 31

Reconstruction of family mediation in a post-justice world uploads/2019/08/family-law-_129._relationships_australia_victoria_ submission.pdf on 24 September 2019. Roberts, M  (2006) ‘Voluntary participation in family mediation’ Family Law, Vol 36 57–61. Salem, P (2009) ‘The emergence of triage in family court services: The beginning of the end for mandatory mediation?’ Family Court Review, Vol 47 371–88. Smith, A (1776) The Wealth of Nations (London: Strahan & Cadell). Smith, R  (2017) Digital Delivery of Legal Services to People on Low Incomes: Half Year Update, December 2017 (Guildford: Legal Education Foundation). Stylianou, K (2018) ‘Compulsory mediation’ Family Law, Vol 48 112–13. Trinder, L, Hunter, R, Hitchings, E, Miles, J, Moorhead, R, Smith, L, Sefton, M, Hinchly, V Bader, K and Pearce, J (2014) Litigants in Person in Private Family Law Cases (London: Ministry of Justice). Van Zeeland, C  (2018) ‘Re-inventing Rechtwijzer: (Almost) ready to go (again)’, ILAG Newsletter No 41 (Spring).

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Chapter 3

Development of the regulator y framework for the practice of family mediationin the UK Lesley Saunders

Introduction No book looking at contemporary issues in family mediation in the UK and Ireland would be complete without an exploration of the development of a regulatory framework, or more accurately, regulatory frameworks. As might be expected given the different legislative structures across the union, there is no single framework and Ireland, of course, has its own too. This chapter focuses on England and Wales, where regulation in family mediation was historically shaped by the emerging profession itself through a range of interest-based member bodies and subsequently influenced, with the introduction of legal aid, by external regulatory requirements. As government policy shifted more and more towards mediation as an alternative to litigation, the need for a unified industry1 to work with led to a period of turbulence and a move away from what had become an industry in three parts – one developing a bottom-up regulatory framework with mediators; another developing existing frameworks to include mediation; and another resisting anything other than the lightest-touch regulation – to a single organisation representing all elements of family mediation provision. The initial outcome of the unification process, the establishment of the Family Mediation Council (FMC), was a return to minimal self-regulation, with six separate member organisations2 working together to agree codes of practice for mediators and Professional Practice Consultants (PPCs) and an accreditation scheme, which met the continuing requirements of legal aid. Even the latter was not strictly unified, with one of the professional bodies continuing its own parallel accreditation scheme, which continued – arguably unhelpfully – to be recognised by the Legal Aid Agency (LAA). The member organisations continued otherwise to regulate themselves with varying degrees of rigour, while providers with legal aid contracts were held to account through the requirements of the LAA’s own Quality

33

Development of the regulatory framework for the practice of family mediation Mark Standard for Family Mediation which, in addition to the mediator accreditation managed by the FMC, provided proxy measures for quality provision. As time went on, events such as the introduction of the pre-action protocol in April 2011 and the mediation information assessment meeting (MIAM) led to the FMC developing a separate, interim accreditation operated by PPCs, but with no effective means of monitoring progression. Thus, while the FMC met the Ministry of Justice’s need to have a single body to speak to, there was increasing pressure from government and the courts for the industry to have a comprehensive and well-managed professional framework for public protection. While the preference was for industry self-regulation, there was a suggestion that in the absence of a positive move forward, the alternative would be a mandatory external scheme. The FMC response to this increasing pressure was to negotiate with the Ministry of Justice for a grant to develop and implement a regulatory framework along with the appropriate organisational structures to support the effective working of the scheme. The outcome of that work was the development of the FMC  Manual of Professional Standards and Self-Regulatory Framework (2014), which set out required organisational structures; initial training and accreditation standards; ongoing professional development and re-accreditation requirements in terms of training and professional practice support; PPC and assessor standards; and disciplinary, complaints and removal of accreditation processes. The report was accepted by the FMC in the late summer of 2014 and implementation began on 1  January 2015. Three years on, by the end of 2018, implementation of the initial standards project was complete. The world, however, does not stand still and, even as the standards project was being implemented, events were occurring that meant the framework needed to be developed and extended. Clearly, too, the initial framework could only ever be a best effort and implementation has inevitably raised the need for certain elements – both content and process – to be reviewed and amended in light of experience. That the mechanisms for such development and review are in place and working effectively speaks to the robustness of the organisational structures and processes put in place around the framework. History cannot be ignored, though; and while the regulatory project has undoubtedly been a success, questions remain around the voluntariness of regulation and the role and purpose of member organisations into the future. The answers to these questions have the potential either to consolidate or to undermine that success. The objective of this chapter is to flesh out the detail of three identifiable developmental periods, which are defined as the emergence of family mediation and beginnings of regulation (1977–2006); turbulence, transition 34

The emergence of family mediation and beginnings of regulation and transformation (2006–14); and the regulatory project (2014–18). It moves on to consider developments during the implementation period and areas identified for review before concluding with those questions around voluntariness and the role of member organisations which might yet affect the future success of the project – the ultimate aim of which is to support the healthy development and growth of family mediation as a safe, high-quality, credible and innovative intervention.

The emergence of family mediation and beginnings of regulation (1977–2007) Roberts (2002) eloquently describes the early development of family mediation as an initially self-regulating profession and then, with the introduction of legal aid3 for family mediation, in some parts subject to government regulation. One of the key issues that Roberts highlights is the tension between finding ways to regulate what is quintessentially a ‘light-touch’ intervention with core principles of client voluntarism, self-determination and confidentiality, within a context of often critical life change and a dynamic characterised by vulnerability, difficulty, complexity and unpredictability, and that very nature of mediation requiring the objective safeguards for clients of professional regulation. All of the latter provide opportunities, behind closed doors, for manipulation – not only between the clients, but also by the mediator. As well as providing a client safeguarding function, at its best, as Roberts remarks, regulation can and should improve the quality of service and thus serve the wider public interest, in addition to ensuring the credibility of mediation as a professional activity. An important regulatory question vexing Roberts at that time was, with regard to self-regulation, how to establish who has, or ought to have, ethical control over the project. The way that family mediation developed in England and Wales meant that this was a crucial issue when Roberts was writing and remained so until what is described in this chapter as the regulatory project period. Although ostensibly now resolved, it is important to recognise that government, the courts and the legal profession remain influential, and to ensure that proper mechanisms are in place to safeguard the continuing integrity of the profession. An additional core regulatory issue advanced by Roberts lay in separating out family mediation as a discrete and autonomous activity from the range of other parallel interventions of counselling, therapy, social work and – key in this field, where mediation outcomes must give due regard to the legal framework – legal processes. Lester (2014a) charts the emergence of family mediation as a distinct area of work alongside the liberalisation of divorce procedures. The Divorce 35

Development of the regulatory framework for the practice of family mediation Reform Act 1969, which allowed negotiated solutions, and the 1974 Finer Report, which promoted the idea of conciliation, initially led to the provision of conciliation services by court welfare officers and subsequently, in 1977, to the establishment of an experimental out-of-court mediation service in Bristol. Although beset by funding difficulties, the service was successful and provided a model for similar services to be developed across the country. By 1981 there were enough voluntary sector services to warrant the establishment of a national body, National Family Mediation (NFM). NFM created its own quality control mechanisms through service affiliation criteria, a mediator Code of Practice and a suite of policies and guidelines for good practice, as well as standard procedures for the recruitment, selection, training, supervised practice and accreditation of mediators (Roberts 2014). NFM has grown and contracted over the years, but today remains one of the member organisations of the FMC. These early services were largely concerned with delivering family mediation to those who were experiencing parental conflict and needed support with arrangements for their children. In those early years, its mediators tended to be drawn from ‘therapeutic’ rather than legal backgrounds. Alongside the development of voluntary sector services, some family solicitors also started to provide mediation separately from their law practices. In 1985 the Solicitors Family Law Association (SFLA – now Resolution), with the help of an existing family conciliator, set up the Solicitors in Mediation project. With funding from the Nuffield Foundation, the project was tasked with developing the use of mediation for financial and property matters, as well as children issues. Over the next three years, the use of a model of co-working as appropriate to combine the knowledge and skills of mediators with a therapeutic background and those with a legal background, the project developed the basic principles and guidelines for the practice of what became known as ‘all-issues’ mediation. The project also involved the Law Society to explore questions of professional indemnity, accountability, a Code of Practice and criteria for training and accreditation. In 1988 the Solicitors in Mediation project ended and the Family Mediators Association (FMA) was established as a member organisation for family mediators to provide training and develop practice in interdisciplinary mediation (FMA, 2014). From 1988 increasing numbers of solicitors trained as mediators and NFM extended its training and provision to encompass all issues, and by the early 1990s family mediation had become established as a mainstream activity. With the burgeoning industry came a proliferation of member bodies: in 2000 the Law Society established a family mediation accreditation scheme; the ADR Group (ADRg) was established in 1993, mainly for entrants from non-therapeutic backgrounds; and the SFLA (now Resolution) established a family mediation section – all providing membership, training and practice development for family mediators. The 1989 Children Act – Section 1(5) of which enshrined the ‘no order’ principle, whereby the court should not make an order unless doing so 36

The emergence of family mediation and beginnings of regulation would be better for the child than not making an order – made court a less attractive proposition and boosted the industry through increased mediation referrals. The Act also set out the Welfare Checklist, so that parents had clear guidance to support their self-determining discussions in mediation. A  number of events in the 1990s and early 2000s made a consistent approach to regulation a necessity and saw the introduction of competence assessment of mediators, a Code of Practice and an audit requirement for providers in receipt of public funds (Lester 2014a). The first European Conference in 1990 led to the establishment of the European Charter on Training in Family Mediation in Divorce and Separation in 1992. This Charter established the standards, theoretical and practical training required and procedures for assessment, as well as identifying trainer requirements for family mediation. The standards were designed to be sufficiently flexible to be adapted across different country contexts. In 1998 the Council of Europe made a formal recommendation about adopting family mediation in relation to divorce, Council of Europe Recommendation No. R (98) on Family Mediation 1998 (Casals 2005). At home in England and Wales, the 1996 Family Law Act made legal aid available for mediation directly. Administered by the then Legal Aid Board,4 the introduction of legal aid led to a requirement for those mediators undertaking publicly funded work to pass a competence assessment and follow a statutory code of practice. It also introduced an audit requirement for mediation services and practices with a contract to provide legally aided mediation. Running parallel with all these developments in the field of family mediation, wider educational thinking during the early 1990s focused on the development of National Vocational Qualifications. This approach sought to recognise that ability in some areas of work is best evidenced in practice rather than just in the classroom. Thus, representatives from a range of mediation fields – family, community, commercial, industrial and environment – and the Law Society worked together on a governmentsponsored project to identify generic mediation practice standards along with area-specific standards and an evidence base for their application in each field. This occupational standard became the basis for competence assessment for the Legal Aid Board, the NFM scheme and the Law Society (CAMPAG 1998). In response, in 1996 the FMA, NFM and Family Mediation Scotland, NFM’s equivalent body in Scotland, collaborated to set up a further organisation, the UK  College of Family Mediators (UKCFM), with the intention that it would become the professional institute for all family mediators. Its three core objectives were to set, promote, improve and maintain the highest standards of professional conduct and training for all those practising family mediation; to advance public education in the skills 37

Development of the regulatory framework for the practice of family mediation and practice of family mediation; and to make the details of qualified and registered family mediators available (Roberts 2002). The establishment of the UKCFM marked family mediation as a formal profession with a distinct and recognised body of knowledge and mechanisms for transmitting that knowledge, as well as for self-regulation and evaluation. The UKCFM approved bodies to provide foundation and continuing professional development (CPD) training; provided competence assessment; developed a suite of policies and practice guidelines; and established a complaints and disciplinary procedure. In 1999 an Advisory Committee on Legal Education and Conduct5 (ACLEC) report suggested that, with the statutory recognition and public funding of family mediation alongside official encouragement of its use, the public had a right to expect the same high standards of service from family mediators as from the legal profession and the courts. ACLEC recommended a more robust system of accreditation and more thorough training and education for family mediators. It saw the UKCFM as the obvious body to set standards and fulfil a disciplinary and complaints role for all family mediators, whatever their background. It also recommended a separation of the functions of setting, assessing performance against and policing standards and the training, education and service delivery functions in family mediation (Roberts 2002). In 2002 the Legal Services Commission (LSC, previously Legal Aid Board) relinquished its role in mediator assessment of competence in favour of the UKCFM and Law Society schemes. At the same time, it introduced the Mediation Quality Mark Standard (MQM) for providers as a proxy measure of quality service delivery. Thus, by 2006 the regulation of family mediation in England and Wales was a mixed picture. Within the industry, the UKCFM provided a standards body for all mediators; a competence assessment scheme approved by the LSC; membership requirements around safe practice (Code of Practice, practice guidelines and supervision) and maintaining competence (CPD and supervision); and the approval of training providers for foundation, PPC and mediator and PPC CPD training. In addition to providing training at all levels, NFM had developed recruitment procedures and a comprehensive set of policies and procedures for services to meet the LSC MQM requirements. The FMA and Resolution, also in addition to providing training at all levels, had developed specialist accreditation schemes for mediators who did not deliver publicly funded mediation. The Law Society Family Mediation Panel provided an accreditation scheme recognised by the LSC. ADRg provided training at all levels and protocols for quality mediation practice. Outwith the industry, the LSC set service delivery standards for providers of publicly funded mediation and worked with the UKCFM to ensure that those mediators who delivered legal aid assessments and mediation were suitably accredited and met ongoing professional practice standards. 38

Turbulence, transition and transformation In 2006, increasing competition for membership in a small field, combined with tensions around the proper authority for regulation (Lester 2014a), prompted the training provider bodies (NFM, FMA, ADRg and Resolution), whose representatives exercised voting powers on the UKCFM governing board, to break away from the UKCFM and form a new non-regulatory body. They were joined by the Law Society which, although not a training provider, had been involved in terms of accreditation with the UKCFM. The FMC was established in October 2007, with each of its member bodies responsible for overseeing the quality assurance of its own members’ practice. The UKCFM was subsequently rebranded as the College of Mediators (CoM), with a brief to continue its standards work across a wider range of mediation provision; it also retained its membership of the FMC, to continue to provide a voice for its family mediator members (Roberts 2014).

Turbulence, transition and transformation (2007–13) At its inauguration in October 2007, the FMC was an umbrella organisation of the six main bodies (member organisations) representing family mediators: ADRg, the CoM, the FMA, the Law Society, NFM and Resolution. The FMC constitution sets out the objectives of prescribing and maintaining a set of professional practice and training standards common to all member organisations, to which all members of those organisations must adhere and which the member organisations themselves must regulate and monitor (FMC Constitution 2007: 4.4 in Roberts 2014). The FMC took over the administration of the LSC accreditation process and produced a common Code of Practice for mediators and a standard requirement for CPD, with a Code of Practice for PPCs6 as a developmental goal. The Law Society retained its own parallel assessment and accreditation process, which continued to be recognised by the LSC. The six member organisations retained, to differing degrees, responsibility for the functions of initial training and CPD courses, complaints and disciplinary procedures, and training and oversight of PPCs. At this time, the only regulatory requirements concerned the provision of legally aided family mediation, with the LSC having ongoing responsibility for auditing service quality and accepting the FMC as the appropriate practice and competence standard-setting body for those mediators providing publicly funded mediation. From the outset, the FMC was dogged by tensions and conflicts of interest between the various member organisations, often struggling to achieve consensus and make progress. The turbulence within the industry was not arising in a political vacuum, however, and over the next few years various regulatory and policy developments within the family justice system made the FMC’s ‘light-touch’ regulatory approach unsustainable. 39

Development of the regulatory framework for the practice of family mediation In 2011 a Practice Direction (supplementary guidance on good practice within the Family Procedure Rules) had established a pre-application protocol in private law proceedings, setting the expectation that applicants to court – whether legally aided or not – would first attend a MIAM with an appropriately qualified mediator to hear about mediation and other forms of non-court resolution, with the purpose of establishing whether mediation was likely to be suitable in respect of the parties, the dispute and all the circumstances. ‘Appropriately qualified’ was defined as accredited by either the FMC or the Law Society to carry out publicly funded mediation – the two schemes already approved by the Ministry of Justice through the LSC. This led to the extension of the reach of the FMC regulatory requirements beyond those providing legally aided mediation to those mediators wishing to carry out, and sign court forms confirming client attendance at, MIAMs. The introduction of the pre-application protocol caused a degree of consternation within the industry that there would be insufficient capacity within the existing pool of accredited mediators to meet the anticipated demand for MIAMs. In response, the FMC issued guidance and detailed criteria, including competence standards7 to allow PPCs for those mediators who were not recognised as competent to carry out publicly funded work, to assess and certificate their consultees as competent to carry out MIAMs. This PPC authority to certify competence represented a significant departure from the standard accreditation process and introduced partial qualification, with an expectation that the mediators so recognised would work towards achieving full FMC accredited (FMCA) status within two years. Thus, the introduction of MIAMs for a time heralded a two-stage accreditation system in family mediation. In 2010 David Norgrove was appointed to chair the Family Justice Review. Norgrove started his career as an economist at the Treasury and then became private secretary to Prime Minister Margaret Thatcher and subsequently a successful businessman, before retiring in 2004. In 2005 he was appointed first Chair of The Pensions Regulator and from 2009 Chair of the Low Pay Commission. The review was tasked with considering radical reform of the systems in place for resolving disputes about children’s residence and contact with children when parents part, the process of divorce and processes around local authority care proceedings. Reporting in 2011, Norgrove noted with regret that the tensions and conflicts of interest in the field had meant that the efforts to develop family mediation as a profession, with a comprehensive and coherent regulatory framework, had suffered ‘a grave setback’ through the loss of the UKCFM and the establishment of the FMC. He stressed the urgent need for family mediation to be meaningfully quality assured in light of its enhanced role in family dispute resolution through the introduction of MIAMs, and recommended that ‘Government should closely watch and review the progress of the Family Mediation Council to assess its effectiveness in maintaining and reinforcing high standards. The FMC should if necessary 40

Turbulence, transition and transformation be replaced by an independent regulator’ (Norgrove 2011: 122). Earlier that year, the House of Commons Justice Select Committee report on the operation of the family courts also called for effective standard setting and regulation across both public and private sector mediation (HC 5/8-1 Justice Select Committee Sixth Report 2011). The FMC response to Norgrove was to commission Professor John McEldowney to review family mediation delivery in England and Wales. His subsequent report urged that the highest priority be given to ‘the creation of an effective and efficient system of mediation through systems that monitor how mediation is delivered, supervised and effectively managed’. He was clear that all family mediators should work to common standards; meet common competencies; qualify within a unified accreditation, registration and certification system; and meet ongoing re-accreditation requirements. His expectation was that the family mediation community would collaborate to self-regulate to avoid statutory regulation (McEldowney 2012). McEldowney particularly highlighted the need for a collaborative approach to address the lack of consistent training, accreditation and appropriate complaints procedures. Although urging collaboration, one of his key recommendations was to re-establish the principle of separating mediator service providers (the six member organisations making up the FMC) from the standard setting and monitoring functions – which ultimately led to the establishment of the Family Mediation Standards Board (FMSB). He was additionally critical of the absence of a national register of family mediators and the fragmentation and lack of transparency which had led to the mixed reputation of mediators and mediation services. Further changes were brought by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). This incorporated substantial changes to legal aid, effectively removing it from legal representation in private family law cases, with limited exceptions around, for example, domestic abuse, safeguarding and child abduction. The Act brought into legislation the expectation that separating couples consider mediation or other forms of non-court dispute resolution through attendance at a MIAM. It was hoped that this legislation would reinforce the requirements of the pre-application protocol which was, to quote the Bard, being honoured more in the breach than in the observance. The universal media message at that time was that legal aid was disappearing for family law in toto. Sadly, the mediation bodies did not make their voices heard to explain that it was still available both for family mediation and for legal advice to support discussions in mediation. Nor was there much mention of the government having made an additional £10 million available for a potential increase in legal aid applicants for mediation (MoJ, 2013). As a consequence, family mediation practices experienced plummeting workloads, with referrals to MIAMs dropping by 47 per cent in the four months post LASPO compared with the same period in the previous year. 41

Development of the regulatory framework for the practice of family mediation Mediation starts were also 26 per cent down. Significant numbers of both law and family mediation practices closed, reduced in size or were worried about survival (Bowcott, 2013). The fall in referrals to family mediation was exacerbated because, as mentioned above, with the LASPO withdrawal of legal aid for solicitor negotiation, clients were not going to lawyers – and it was those lawyers who had previously been significant referrers, not least because of the Funding Code requirements.8 An unintended consequence of LASPO and the closure or shrinking of family mediation providers was the widening of the training to accreditation gap – an issue to be returned to later. The FMC accepted the majority of McEldowney’s recommendations and in 2013 commissioned Stan Lester to undertake first a scoping study and later what was known as the ‘standards project’ – the development of a regulatory framework for family mediation. Added impetus for the work came from the Crime and Courts Act 2013, implemented on 22 April 2014, which brought into being the single Family Court. Also developed and implemented at the same time were the Children and Families Act 2014, Practice Direction 12(B) – Child Arrangements Programme 2014 and Practice Direction 3(A). In combination, these two pieces of legislation and the associated rule changes provided a clearly defined process for receiving, allocating and dealing with child applications consistently throughout the various courts, as well as a clear timeframe to ensure that applications would be dealt with promptly and efficiently. Alongside this were clear markers for the judiciary to consider non-court dispute resolution at a number of junctures. With MIAMs and mediation firmly embedded in the family justice system, the need for a coherent regulatory approach was pressing.

The regulatory project (2013–18) Lester’s initial review identified many of the elements needed for a self-regulatory framework to be in place across some or all the FMC member organisations, operating more or less effectively, and developed to different degrees. The FMC was operating the Assessment of Professional Competence (APC) scheme which, along with the Law Society Family Panel accreditation, remained the LAA requirement for publicly funded mediation providers. An FMC  Code of Practice for Mediators had been produced and a parallel Code of Practice for PPCs was being developed. However, where mediators presented themselves to the public as ‘qualified’, this term had a whole range of meanings – from having completed training to being recognised to deliver MIAMs to being accredited under the FMC or Law Society schemes. On being further commissioned by the FMC to develop a regulatory framework, Lester put together a project plan with nine work streams. One was concerned with project management, while the remaining eight addressed the various areas that needed to be tackled to build a 42

The regulatory project coherent and consistent standards framework. The practice standards themselves formed the core of the framework, from which fanned out the other seven streams, addressing organisational issues in implementing any framework; core training; assessment of competence; transitional and alternative entry routes; CPD and re-accreditation; the roles of assessors and PPCs; and finally, complaints and disciplinary processes. Aside from the organisational strand, which was undertaken with the FMC  Board, the work was conducted by project groups made up of Lester plus four or five volunteers nominated by the member organisations.9 The main project outputs divided into constitutional reforms and means of oversight and changes to standards, systems and processes. The key constitutional change required to the FMC was to form a separate board to manage regulation, the significance of which was in separating out the functions of standard setting and monitoring. The FMSB was established in 2015 as an operationally independent standing committee of the FMC with delegated authority to advise upon, oversee the implementation of, and monitor adherence to, the standards framework approved by the FMC Board in 2014 (FMSB 2015). Unlike the FMC Board, which is largely drawn from the member organisations to ensure representation of all relevant interests, the FMSB is designed to have its membership drawn fairly evenly from both within the profession, with safeguards to ensure a spread of member organisation interests, and without – from professionals with wider experience, perspectives and expertise relevant to its purpose. Membership of the FMSB is voluntary, with recruitment through the FMC, and is for a four-year fixed term and no return within four years. In implementing and monitoring adherence to the standards, the FMSB retains responsibility for discussion, work allocation and approval, while delegating specific tasks either to individual members or to member-led panels. The FMSB is additionally tasked with ensuring parity of standards between the FMC and Law Society accreditation processes.10 The central purpose of the standards project was to create a single qualified status within the industry – an FMCA family mediator to replace the old LAA ‘competence assessed’ designation and absorb the two-stage approach that had been introduced with MIAM competence recognition in 2011. Drawing on the various schemes already discussed – the APC and Law Society schemes, the MIAM criteria, the LAA Mediation Quality Mark and the Counselling, Advice, Mediation, Psychotherapy and Guidance standards – along with research into the approaches in other similar professions, Lester produced a new set of competence standards for the industry (Lester 2014b). These cover theoretical underpinnings, professionalism and ethics and mediation practice. He also defined competence so that the level to be achieved at assessment is transparent and clear in terms of knowledge, standard of work, autonomy, coping with complexity and perception of context. These standards lie at the heart 43

Development of the regulatory framework for the practice of family mediation of the FMC project (FMC 2014). Around these competence standards were drawn up requirements in terms of title and eligibility; gaining accreditation; renewing accreditation and transitional and non-standard arrangements for the award of FMCA; minimum requirements for initial training course approval; assessors of competence; and common requirements for PPCs. Finally, encompassing the whole framework are the requirements for complaints and disciplinary processes and withdrawal of accreditation. ‘Qualified’ now has the single meaning of denoting FMCA status (with those successfully completing the Law Society scheme being passported through). Becoming FMCA involves successfully completing approved training, registering with the FMC and a member organisation, undertaking PPC supported and supervised practice, and building a portfolio based on that practice experience for formal FMC/Law Society assessment of competence. The reforms introduced the principle of reaccreditation every three years, with criteria around minimum practice levels, ongoing PPC support and CPD. A  significant change was the replacement of an hours and points approach to CPD with a self-managed cycle of learning and development, evidenced through a training log, including a rationale and brief evaluation of the benefits. Approved foundation training must cover the topics in the new professional standards, be pitched at a minimum of England and Wales Qualification Level 5, comprise at least 60 hours of contact and include at least 30 hours of skills development. A further significant change relates to the oversight and registration of PPCs. The standards framework leaves training with the member organisations, while setting common training requirements, creating a central register of PPCs and requiring re-accreditation every three years. The standard qualified status across family mediation, coupled with the dual FMC and member organisation membership requirement, makes it possible within the new framework to revoke registration. While complaints and disciplinary procedures remain with the member organisations, subject to common standards and oversight by the FMSB, the FMC holds a central register of FMCA mediators and can remove accreditation in response to disciplinary matters. The FMC (via the FMSB) also acts as the final court of appeal. Disciplinary expulsion from member organisation membership will result in loss of accreditation and an information-sharing protocol will prevent mediators from hiding issues by changing member organisation. During what remained of 2015, once recruited, the FMSB’s priorities were to ensure that all family mediators registered with the FMC; to implement the new portfolio accreditation scheme and procedure; to establish a panel and process to deal with complaints and disciplinary issues; and to establish a panel and process for approving foundation training courses (FMSB 2016). The FMC  Board remains responsible for the 44

Extending the standards framework Code of Practice for mediators and made changes during 2016 in relation to conflicts of interest, as well as developing guidance for online video mediation and establishing a working group on child-inclusive mediation. In 2016 the FMSB completed the preparatory work for delivering a robust, accurate and publicly accessible online register, setting out the qualifications and geography of family mediators. It also worked with the Ministry of Justice to have court forms amended to include mediator registration numbers; recruited training course reviewers; set up a system to assess and approve foundation training; developed guidance and a marking scheme for competence assessors; and reviewed the member organisation complaints and disciplinary procedures to identify areas of non-compliance. As at the end of 2016, 1,225 mediators were registered with the FMC, of whom 704 were FMCA and 521 were working towards accreditation (FMSB 2017). In 2017 the FMSB’s achievements included publishing the online register; developing an extension policy for accreditation for mediators trained before 31  December 2014; agreeing the contents of approved refresher courses; and developing a policy and process for, and completing the first tranche of, re-accreditation. Additional work included implementing changes to the portfolio requirements; leading the FMC PPC  Code of Practice working group; and extending the standards framework to include child-inclusive mediation, discussed in more detail in the next section. At the end of 2017, 1,080 mediators were registered with the FMC, of whom 747 were FMCA and 333 were working towards accreditation (FMSB 2018). As 2018 drew to a close, the FMC and FMSB could congratulate themselves on a job well done. The key elements of the regulatory project had been successfully implemented and within the planned timetable. At the end of 2018, 1,100 mediators were registered with the FMC, of whom 749 were FMCA and 351 were working towards accreditation (FMSB 2019). The next big questions would concern whether the framework would be amendable to review and extension to reflect the developmental nature of the profession.

Extending the standards framework When developing the standards, Lester (2014a) anticipated that the framework might in future be extended to include additional aspects of mediation such as direct consultation with children and mediation in the context of abduction. Events have since brought the former project forward. Gathering momentum alongside the development and implementation of the standards project was the movement for the voice of the child to be heard within the family justice system. In the early days of family mediation, 45

Development of the regulatory framework for the practice of family mediation a number of practitioners in the UK made compelling arguments for involving children in a process known as direct child consultation. In the late 1990s the UKCFM developed a direct child consultation policy, procedure and practice guidelines. Revised and extended in 2002, and modified slightly by the different member organisations, this procedure provided the guiding policy and process framework for practitioners (UKCFM 2002). The use of direct child consultation in mediation was patchy, however, and any decision to include children was often based less on upholding their rights and more on arbitrary factors to do with individual mediators and providers. The Norgrove review (2011) called for greater child focus in family justice, with improved training for professionals, to ensure that children’s voices are heard. At that time, direct child consultation was variously available either routinely to children over the age of seven, eight, nine or ten, and for others not at all. In 2014 the Family Mediation Task Force recommended the urgent review of options to involve children and the establishment of an interdisciplinary group to improve training, supervision and registration in this area, as well as to update the practice guidelines. It also recommended that the Family Justice Young People’s Board11 (FJYPB) National Charter be updated to include mediation and provide a coherent blueprint for hearing children’s voices in the future (Report of the Family Mediation Task Force 2014). Later that year the Voice of the Child Dispute Resolution Advisory Group was established to ensure the development and promotion of child-inclusive practice in non-court dispute resolution processes so that the voices of children and young people impacted by private family law proceedings would be heard. The Group focused primarily on family mediation in order to develop a blueprint, which could be adapted for use by other dispute resolution practitioners, for appropriately involving children aged ten and above to support parental decision making. The Group’s final report made recommendations on the definition and delivery of child-inclusive practices; private ordering and ethical issues; monitoring of and accountability for child-inclusive practices; appropriate information and support provision for children and young people; and changes in the dispute resolution culture (Voice of the Child Report 2015). During 2016, in response to these developments, the FMC asked a working group of direct child consultation qualified mediators and trainers, involved as individuals rather than as representatives of member organisations, to make recommendations on training and CPD requirements for mediators practising the now renamed child-inclusive mediation (FMC Annual Report 2016). The group was later expanded to include direct child consultation trainers from all member organisations and formally tasked with developing child-inclusive mediation training and practice competencies. The working group’s recommendations were considered, endorsed and, in June 2017, approved by the FMC Board to be passed to the FMSB for 46

Reviewing the standards framework implementation. The recommendations were contained in five papers providing the context and rationale; definition and principles; mediator qualification, training and practice requirements; practice standards; and training provider and CPD requirements. A  departure from the core of the standards framework is that CIM competence is to be assessed during training rather than through a portfolio after a period of practice.12 The FMSB’s achievements in 2017 included developing an implementation plan for the new child-inclusive mediation professional standards and preparing to assess child-inclusive mediation courses (FMSB  Annual Report, 2017). The standards framework was revised in May 2018 so that child-inclusive mediation awareness and understanding now form part of foundation mediator training and competence assessment, with the intention that all mediators will be aware of and offer child-inclusive mediation to parents where appropriate. For those wishing to conduct child-inclusive mediation, a sixth section has been added to the framework incorporating the relevant rationale, principles, competences, qualification, training and practice requirements, as well as transitional arrangements for those who trained previously.

Reviewing the standards framework Lester (2014a) notes that while the new framework represents a significant step forward in family mediation being able to represent itself coherently to the public, various aspects will need to be reviewed in light of experience to ensure that they are fit for purpose. He particularly identifies the sufficiency of the minimum length for training courses; the practicability and adequacy of supervised pre-accreditation practice for public protection; and the rigour of the assessment process in terms of observed practice. He also remarks on the structural compromises within the standards framework, with particular reference to the twin issues of leaving initial complaints and disciplinary procedures with the member organisations and accepting two separately administered accreditation schemes (Law Society and FMC). One issue that needs urgent review is the route to accreditation. Unlike in professions such as law, medicine and social work, there is no formal progression route from training to accreditation. This is exacerbated by the standards framework requiring mediators to be competence assessed in mediating both children and financial matters – ‘all-issues’ mediation. Previously, it was possible to qualify in one or the other, which meant that mediators could play to their strengths, take a staged approach to accreditation or – perhaps more importantly, where demography dictates the type of issue brought to mediation by clients – qualify in a timely way in a single category where there are insufficient financial cases to achieve qualification. The FMSB has already addressed one of the barriers by 47

Development of the regulatory framework for the practice of family mediation changing the accreditation requirements for type of case so that mediators may now submit two child and two property and finance cases if they are unable to find an ‘all-issues’ case. This change was ratified by the FMC in August 2017. The overall problem, though, needs a much more creative solution and perhaps a bit of creative thinking to avoid mediators being drawn to unregulated work. Autumn 2018 saw the FMC publish the context and work streams in the first stage of a formal standards review. The review will focus on the accreditation process; complaints; the format and status of all standards, codes and guidance notes; and standards issues arising around end of mediation documentation (FMC November 2018). The accreditation process review will focus on balancing continued public protection while identifying the ‘pain points’ in the accreditation process and options for change through either changing the process and requirements or providing mediators with tools or assistance to comply with them. Early in 2019 the FMC consulted with mediators to identify specific barriers and seek ideas for change to inform the review (FMC January 2019). The complaints and appeals review will address process differences between member organisations and simplify those processes. It will also clarify the rules and procedure for the final stage complaints procedure and develop a common final appeal process in line with Ministry of Justice grant conditions. The standards framework structure review will aim to make it easier to access, use and amend. The final strand of the first stage review programme will consider whether and how any successful mediation outcome might be documented in a format capable of being used in court. This will be the last strand of the work to be done to take maximum advantage of the ongoing digitisation of the court processes (FMC and FMSB 2018).

Conclusion and the way forward Thus far, this chapter has set out a history of the development of regulation within and alongside a nascent industry; explored a subsequent period of hiatus and fragmentation of both profession and standards; and discussed a final convergence of interests, albeit encouraged from without, and a burgeoning professionalism with a clear and comprehensive selfregulatory framework. The new framework is commendable, providing clarity and confidence in quality service provision for the public, the courts and the government. It has shown itself to be responsive both to developments in the field, with the extension of the framework to include child-inclusive mediation standards, and to lessons from the field, with some small changes around the portfolio and a wider review in progress. The now five member organisations (CoM, FMA, NFM, Resolution and the Law Society) which developed the industry and grew alongside it have united through the formation of the FMC, with each having a place on the board and equal voting rights to ensure parity of esteem for their 48

Conclusion and the way forward members. The FMSB has been created to separate standard-setting and monitoring functions from the provision and delivery of services to mediators, as recommended by McEldowney (2012) and reflecting the earlier member organisation/UKCFM model. The professional population supporting and supported by these five member organisations and single regulatory body at the end of 2018 comprised 1,100 mediators, of whom 749 were FMCA mediators (242 were additionally PPCs) and a further 351 were working towards accreditation (FMSB 2019). Moving forward, it is possible to identify two key concerns which, if not addressed, could yet undermine the regulatory project. One speaks to questions around sustainability and the other relates to the ‘selfness’ of regulation, its voluntary nature and a need for the industry to ensure that the benefits of participation outweigh the drawbacks (Lester 2014a). In relation to sustainability, there is a question about whether a professional population of around 1,000 can realistically support – with fees and voluntary efforts – five member organisations and a regulatory body. Is this the best use of scarce resources? Is it time for member organisations to rethink/relinquish their role? While the development of interestbased member organisations was helpful in its time, is now the moment to question whether we are confident enough as a profession to trust in common interests? To let go of the lawyer/non-lawyer dichotomy? To be mediators, not just first and foremost, but just? Is it sensible for either profession or clients to have six complaints bodies? Or six ‘find a mediator’ functions? Or six sets of volunteers developing best practice? Moreover, while an enormous amount of incredibly valuable work has been and is being done by volunteers across all six organisations, are there mediators and PPCs who cannot afford to volunteer? And how much talent is being missed because the population is funding six organisations minimally rather than one in a way which would allow some level of recompense to support inclusion? An associated series of questions relates to the concern raised by Lester (2014a) when the standards framework was first introduced. While the new framework is designed to include all family mediators, the only elements of compulsion for mediators to come under the FMC umbrella relate to delivering legally aided mediation and signing court forms for those clients where mediation is not suitable or has broken down. This raises questions around the ‘training to accreditation’ gap, the incentives to qualify and join the regulated profession, the opportunities to practise unqualified and the dangers of losing the reciprocal membership/ registration arrangements between the FMC and member organisations. On the ‘training to accreditation’ gap, if accreditation is too difficult to achieve, will mediators choose to practise unqualified? Allied to this is the question of incentives to qualify. Given that they already have to practise 49

Development of the regulatory framework for the practice of family mediation unqualified to gain evidence for accreditation, is FMCA sufficient incentive to outweigh the actual and opportunity costs involved? If mediators can run a successful mediation practice without needing to engage with either legal aid or the courts, what is the incentive for them to engage rather than practise without oversight? Could this lead to a growth in unregulated practice? And if there were no longer any reciprocal arrangements for membership and FMC registration, would member organisations, if they retained that role, continue to privilege the FMCA qualification? Might they revert to in-house schemes and undermine the professional project? What is abundantly clear is that mediators, member organisations and the FMC alike have put an enormous amount of time, effort and energy into developing and implementing a robust self-regulatory framework against a background of industry decimation as an unintended consequence of policy decisions designed to achieve the opposite. Mediators are increasingly identifying with the FMC and in response the FMC is developing fora for mediator support and development, growing the sense of a single united community to replace the factions of the past. We now need some creative forward thinking, to arrive at interest-based – dare I say, mediatorly – answers to those outstanding difficult questions, to ensure a future where mediators will provide safe, high-quality and credible services to those clients who need and choose our help.

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Endnotes

Endnotes 1 In this context the term ‘industry’ refers to all family mediation providers, as well as their membership, representative and regulatory bodies, who may or may not be family mediators. The term ‘professional community’ refers only to family mediators, either accredited or working towards accreditation. 2 The six member organisations were ADRg, the CoM, the FMA, the Law Society, NFM and Resolution. 3 The terms ‘legal funding’ and ‘public funding’ are used interchangeably throughout this chapter to refer to the funds provided by government to support clients in mediation. Over time, both terms have been used and the currently used term has reverted to ‘legal aid’. 4 From its introduction in June 1949, legal aid was administered by the Legal Aid Board until April 2000 when, under the Access to Justice Act 1999, the Board was replaced by the LSC as an executive non-departmental public body of the Ministry of Justice, responsible for the administration of legal aid across England and Wales. On 1 April 2013, with the implementation of LASPO, the LSC was replaced by the Legal Aid Agency, now an executive agency of the Ministry of Justice. 5 The Advisory Committee on Legal Education and Conduct (ACLEC) was replaced on 1 January 2006 by the Legal Services Consultation Panel. The Committee is tasked with advising the Lord Chancellor on the regulation and training of lawyers and others offering legal services. 6 PPCs are experienced mediators who provide supervision, support, mentoring and an element of oversight to other mediators pre and post accreditation. 7 All mediators offering MIAMs had to confirm successful completion of FMC-approved foundation training; ongoing mediation practice; compliance with their FMC member organisation’s requirements for ongoing training and PPC; and current professional indemnity insurance. In addition, mediators accredited through the FMA or Resolution in-house schemes needed their PPC to ensure and confirm that the mediator was familiar with the process of assessment for eligibility for public funding. Other practising mediators had to attend a member organisation-approved MIAM training course; confirm 10 hours’ minimum face-to-face mediation experience; demonstrate meeting specific MIAM competences; and affirm their intention to gain FMC/Law Society accreditation within two years. There were exceptions for mediators with particular experience and additional requirements around refresher training and training plans for those who had not mediated within the last five years. The MIAM competences covered the ability to create a safe, neutral environment for clients; assess and respond appropriately to domestic abuse and safeguarding issues; inform clients about the principles, process and models of mediation; assess suitability; understand and record clients’ decisions; and operate in a family law environment, including legal aid assessment. 8 The Funding Code contains the rules governing access to legal aid. Until the introduction of LASPO, lawyers were required to refer to mediation before allowing an application for funding for representation. 9 Each project group brought together relevant experience and expertise, represented the range of interests across the professional spectrum and allowed for overlap where necessary to ensure continuity and coherence. Drafts from the working groups on assessment and accreditation as well as CPD and re-accreditation were subject to wider practitioner consultation through the member organisations. The FMC Board approved the outputs of the project in July 2014 with implementation planned to commence in January 2015. 10 Although the Law Society scheme ceased to be recognised by the LAA in new contracts from 1  September 2018, mediators holding Law Society accreditation are passported into FMCA. 11 The FJYPB was set up and is supported by the Children and Family Court Advisory and Support Service. It is a group of around 50 children and young people from across England and Wales who have experienced family breakdown, who work with the Family Justice Board and other stakeholders in the system to ensure that their work is child centred and child inclusive. Established in 2013, one of its first achievements was the development of a National Charter setting out the aspirations of children and young people in relation to family justice services.

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Development of the regulatory framework for the practice of family mediation 12 An introduction explained the group membership, background, context, rationale and outputs. A separate paper set out the definition and principles of child-inclusive mediation and the qualification, training and practice requirements, as well as expectations around facilities and the conduct of child-inclusive mediation for mediators. Competencies for child-inclusive mediation, now a post-accreditation qualification, were set out in line with the existing standards framework in two sections with guidance notes. The first covers the knowledge base (theoretical, legal and understanding and application of the process), and the second is about performance and skills standards – demonstrating competence in working with parents, meeting with children and young people and guidance. Two remaining papers address requirements for child-inclusive mediation course providers (covering level of training, minimum content, duration, teaching methods, staffing and trainers, and assessment) and child-inclusive mediation CPD (for mediators and PPCs, including transitional arrangements).

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References

References Bowcott, O (2013) ‘Mediation services hit by legal aid cuts, Ministry of Justice figures reveal’, The Guardian, 30 September. CAMPAG (1998) Standards in Mediation (London: The National Training Organisation for Employment). Casals, MM  (2005) ‘Divorce Mediation in Europe: An Introductory Outline’ Electronic Journal of Comparative Law, Vol 9, Issue 2. Finer, M  (1974) Report of the Committee on One-Parent Families Cmnd 5629, Vol 2 (London: HMSO). FMA (2014) History. Accessed online at https://thefma.co.uk/about-thefma/history/ on 22 September 2019. FMC (2016) FMSB Annual Report, 2015 (London: FMC). FMC (2017) FMSB Annual Report, 2016 (London: FMC). FMC (2018) FMSB Annual Report, 2017 (London: FMC). FMC (2019) FMSB Annual Report, 2018 (London: FMC). FMC (2018) Newsletter, November 2018 (London: FMC). FMC and FMSB  (2018) Summary of context and the work streams in FMC Standards Review (London: FMC). FMC (2019) Newsletter, January 2019 (London: FMC). Lester, S (2014a) ‘Professional organisation and self-regulation in family mediation’, Family Law Vol 44 1338–41, 1472–75 and 1610–13. Lester, S  (2014b) FMC  Manual of Professional Standards and SelfRegulatory Framework (London: FMC). McEldowny, J (2012) Family Mediation in a Time of Change: FMC Review Final Report (London: Family Mediation Council). Ministry of Justice Press Release (2013) Extra £10 million for mediation, 3 January 2013 (London: Ministry of Justice). Ministry of Justice (2014) Report of the Family Mediation Task Force (London: Ministry of Justice). Ministry of Justice (2015) Final Report of the Voice of the Child Dispute Resolution Advisory Group (London: Ministry of Justice). Norgrove, D (2011) Family Justice Review: Final Report (London: Ministry of Justice). 53

Development of the regulatory framework for the practice of family mediation Roberts, M (2005) ‘Family Mediation: The Development of the Regulatory Framework in the United Kingdom’, Conflict Resolution Quarterly Vol 22, Issue 4 and subsequently incorporated in Menkel-Meadow, C (ed) (2012) Complex Dispute Resolution: Foundations of Dispute Resolution, Vol 1, Chapter 15 (Aldershot: Ashgate Publishing Ltd). Roberts, M (2014) Mediation in Family Disputes: Principles of Practice (4th Edition) (London: Ashgate). The HC 5/8-1 (2011) Justice Select Committee Sixth Report: The Operation of the Family Courts, June 2011 (London: HMSO). UK College of Family Mediators (2002) Children, young people and family mediation: Policy and practice guidelines (Manchester: UK  College of Family Mediators).

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Chapter 4

Family mediation: the Irish perspective Sinéad Conneely and Róisín O’Shea

Irish family law and family life Irish family law is distinguished by the absence of divorce until 1996.1 Its origins are deeply rooted in British common law, yet it also reflects the key influence of Roman Catholic doctrinal teaching on the family, particularly in the absence of divorce until the last ebb of the twentieth century. Key to its construction is the constitutional protection of the family based on marriage: a bold recognition of the family in Article  412 as the ‘natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law’. The state guarantees to protect the authority of the family ‘as the necessary basis of social order and as indispensable to the welfare of the Nation and the State’. It is hardly surprising, then, that the legislature was slow to engage with issues of family breakdown and even more reluctant to recognise the needs of non-marital families. Ireland has changed radically in the past 20 years as prosperity paved the way for increasing ethnic and religious diversity. By 2016, 17 per cent of people in Ireland were born outside of the country.3 The birth rate outside of marriage has climbed steadily, to one in three children. The authority of the Catholic Church has been permanently undermined by scandals involving the sexual abuse of children and historical abuse of children in the state childcare system – a network of 250 industrial schools, reformatories, orphanages and hostels run by the Church (McGee et al 2002). Participation of women in the labour force has increased steadily and this trend has become more pronounced with time; the gap between the genders is now at 15 per cent. Constitutional amendments by popular referendum clarified the rights of children,4 ensuring that concepts such as the best interests of the child and the voice of the child have the status of fundamental law. Referenda have permitted same-sex couples to marry5 and paved the way for abortion on demand,6 up to 12 weeks’ gestation. Irish society is hardly recognisable and Irish family life has changed, although the divorce rate of 0.6 per 1,000 remains very low by international standards. Family law has turned to focus on the new realities, seeking to address diverse family forms and situations, such as parentage in cases of assisted human reproduction and parenting after re-partnering.7

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Family mediation: the Irish perspective The law is concerned to reflect the new realities of family experience in a rapidly changing country and further referenda are proposed. On 24 May 2019 the people voted to change the constitutional provisions regulating divorce in Ireland, which required spouses to live apart for a period of four years prior to the application. That requirement has now been removed from the Constitution, enabling the legislature to reduce the living apart time from four years to two.8 Another referendum is proposed to address the gender bias in Article 41.2.1.9

The development of family mediation in Ireland The Family Mediation Service (FMS) was established in 1986 as a pilot project and was the first publicly funded family mediation scheme in Europe. It was established as an independent, community-based, out-ofcourt service which addressed all issues on relationship breakdown, and it retains these essential characteristics (Sweeney and Lloyd 2011). The FMS was created and funded in the legal context of a constitutional ban on divorce, which illustrates the prophetic qualities of its early supporters, who foresaw that a service would be needed to assist increasing numbers of people affected by relationship breakdown. It has also remained entirely free to all – even those with ample resources – for all family issues.10 In many ways, it offers everything that mediation advocates could desire and shows a strong and continuous public policy commitment to family mediation by the Irish state. A solicitor must discuss the possibility of engaging in mediation with a client with a view to achieving an agreed outcome prior to the initiation of legal proceedings for separation, divorce and various orders in relation to children.11 The early development of a state-funded mediation service has supported the growth of mediator education and training by raising awareness of the practice and facilitating student placement. It also led to the establishment in 1992 of the Mediators Institute of Ireland (MII) – the largest professional body in Ireland, representing the interests of mediator members, who practise mediation in a wide range of mediation settings, including workplace mediation, elder mediation, commercial mediation, community mediation and family mediation.12 The MII, a not-for-profit company, is the largest professional membership body for mediators in Ireland, which has led the drive to promote and develop mediation as a profession in Ireland. The organisation accredits mediation training and Continuing Professional Development courses which meet standards that are recognised within the profession, with over 30 bodies now certified to provide accredited training. These bodies include third-level institutes, professional bodies and recognised training organisations. The MII’s mission statement recognises and values the contributions to mediation from people across all areas of society and different areas of mediation practice, and offers leadership in a diverse mediation community. While the MII supports the establishment of the Mediation Council of Ireland, it may necessitate some changes in the organisation, although it is likely that some Council functions already 56

The development of family mediation in Ireland being offered by the MII could be delegated by the Council and the MII will also continue to represent the interests of its members through a member seat on the Council. These developments are significant for the creation and growth of a broader family mediation industry. The FMS has historically had high levels of client satisfaction (Conneely 2002), although no empirical research to evidence client satisfaction has been published beyond 2002. The FMS has engaged in regional expansion so that it is now available in 20 locations around the country on a full or part-time basis, with ten courtbased offices.13 The FMS has experienced a couple of moves through different government departments, eventually settling in its present home within the Legal Aid Board in November 2011. This move was fortuitous, since the vast majority of applications for civil legal aid are for private family law matters, with 12,491 private family law cases handled by the Legal Aid Board in 2017. This move facilitated the introduction of a pilot scheme for one-to-one mandatory information sessions, where persons with a dependent child seeking legal aid for family matters had to attend an information session on family mediation before they were granted a legal aid certificate for court representation. The pilot was suspended at the end of 2017, a consequence of which was increased waiting times for mediation itself (Legal Aid Board 2017: 36). Group information sessions were offered by the FMS in a subsequent pilot scheme, with a review scheduled for the end of 2018; and group information sessions are provided to some law centre clients as a mandatory requirement where there is a dependent child. In 2016 the Legal Aid Board opened the first co-located law centre and family mediation office in Dublin, which was intended to give clients seamless access to both services. The aim of the co-location is to facilitate greater uptake of mediation and the service is being monitored. In that year, the FMS catered nationally for 2,249 cases of former couples, of which 745 were carried forward from 2015. These cases included unmarried parents who wished to resolve parenting issues, a large demographic in Ireland. Of the combined 2,249 cases in 2016, 547 carried over into 2017. Some 1,702 cases were therefore concluded in 2016 and 885 of those cases entered into agreements. With 52 per cent (Legal Aid Board 2017: 32) of cases reaching agreement, the outcomes fall far short of those in Ontario, Canada, where 81.1 per cent of mediated cases at the Family Courts reached full or partial settlement (O’Shea 2013: 275). The statistics and information in the Legal Aid Board 2017 report, which became available in late 2018, are not presented in the same format and therefore it is not possible to compare like with like. However, it is worth noting that the 2017 annual report indicates that, year on year from 2014 to 2017, there has been a decline in ‘1st contact mediation information sessions’ and an overall decline in the number of agreements reached from 2015 to 2017 (Legal Aid Board 2017: 34). It should also be noted that the FMS includes cases as ‘completed’ on its database where there is a draft mediated 57

Family mediation: the Irish perspective agreement, but the clients do not return to mediation and the agreement remains unsigned (Legal Aid Board 2019: 43). For example, in 2017, there were 265 mediated agreements at Dolphin House, but the report does not set out how many were ‘completed’ unsigned agreements. Perhaps a more accurate barometer of the year-on-year uptake of mediation with the court-related FMS at Dolphin House is the annual figure provided for first joint sessions, which is when mediation commences: 435 in 2014, when 10,223 applications were made to the court for maintenance, guardianship, custody and access in the same period; 407 in 2015, when there were 9,323 applications; 348 in 2016, when there were 7,841 applications; and 318 in 2017, when there were 8,232 applications (Legal Aid Board 2017: 33). The Legal Aid Board is undertaking analysis to understand the relatively low uptake of mediation (Legal Aid Board 2017: 34) and grapple with the significant challenge of persuading both parties to opt for mediation. Although the FMS has engaged in innovation in recent years in order to boost the numbers choosing to participate in mediation, it inevitably runs into the problem of delay. The greater the numbers accessing the service, the more intractable this problem becomes. Long delays are inevitable unless the service is limited to those who need assistance based on their financial circumstances. Currently, the FMS has waiting times of between four and 48 weeks14 for a first appointment, excluding the Dolphin House location in Dublin City, which has no waiting list for access and maintenance disputes. The Legal Aid Board has worked hard to reduce waiting times for both the civil legal aid service and the family mediation service, but disputes in family law are particularly time sensitive and delay discourages participation. This can be resolved through increased resources, but it must be questioned whether future governments will be willing to support a service that is free to everyone, for all family issues, as demand increases, unless a cost-benefit analysis is carried out – from the perspective of both the state and users of the service – to underpin further state support. The crux of the matter for family mediation is the same everywhere: how to persuade the general public to buy into a practice which is not yet part of their cultural expectations, is not depicted in film and television, and is difficult for them to imagine. Although free and accessible family mediation has been offered for over 30 years, the vast majority of people in Ireland who choose to litigate a family law dispute do not begin with mediation. In 2016, there were over 21,000 applications to Irish district courts in the areas of guardianship, custody, access and maintenance, and 5,500 applications for judicial separation and divorce in the Circuit Court (Courts Service 2016: 51). In 2017, there were 21,676 applications to district courts in the areas of guardianship, custody, access and maintenance, and 5,289 applications for judicial separation and divorce (Courts Service 2016: 40). A finding of our research in the Family Mediation Project15 is that potential users of the service – particularly men – incorrectly believe that mediation is a form of counselling or family therapy that may involve reconciliation, and are therefore reluctant to engage based on that misconception. 58

Ongoing research If the marriage of the Legal Aid Board and the FMS points the way towards increasing participation in mediation for legally aided clients, another challenge is to convince private family law clients away from the legal path. Solicitors act as gatekeepers to the system for private family law clients and are the first port of call for the parties to a dispute. Although they must advise clients of the possibility of mediation,16 the very poor level of participation in mediation since the commencement of the Mediation Act 2017 calls into question whether this approach is sufficient. It is fundamentally a question of money. Family law is very lucrative – especially in Ireland, where the two-part process of legal separation followed by divorce increases the cost for clients. The split in the legal profession means that married clients will find themselves in the Circuit Court paying for at least two solicitors and two barristers out of family assets; the costs of a contested case range from €15,000 to €50,000 per party in the Circuit Court, with legal fees potentially running into hundreds of thousands in the High Court. How could a free family mediation service not manage to compete with this in the minds of potential clients? If it were merely a question of delay in accessing the public system, a thriving private family mediation industry should have developed by now to address this problem. Yet it has not; only a handful of mediators in Ireland practise on a full-time basis. Family mediation is like mom and apple pie in American politics – everyone agrees that it is better for parties to resolve their disputes with the help of a neutral person than to engage with the legal system to any great degree, and certainly to the point of judicial determination. The trouble is convincing the client, which must be done by raising awareness of the benefits of mediation through empirical research, coupled with regulation of the profession to ensure consistency and quality of the delivery of the service. When a potential user understands what the service is, knows that a registered professional mediator has completed appropriate training and knows that mediators must adhere to published practice guidelines, including being subject to complaint procedures, the profession may see more uptake.

Ongoing research The authors commenced a pilot research project in late 2013, the Family Mediation Project, launched by then Canadian Ambassador to Ireland Loyola Hearn. The project is test-running the next iteration in family mediation, comprising the most effective elements sourced globally, and is gathering empirical data to evidence outcomes. The aim is to offer appointments within ten days and there is a clear, step-by-step iterative process. The project offers child-inclusive,17 means-tested, reasonably priced family mediation dealing with guardianship, parenting (access), custody and maintenance, prioritising the best interests of children and meeting children to hear their views. Participants are screened for domestic abuse issues in individual intake sessions; the project offers bigender co-mediation and deals with cross-cultural issues; and interpreters are sourced when required. The authors presented interim project 59

Family mediation: the Irish perspective findings at international conferences from 2013 to 201818 based on 50 completed cases. The authors launched the final ‘real-world’ phase in May 2018 – a larger-scale trial with family mediators from Dublin Community Mediation offering the service at community level in four family resource centres (FRCs)19 across the southern area of the Dublin Metropolitan district. The project seeks to encourage greater numbers of people to access mediation by offering it in local centres already funded and staffed by the state to provide services to families in disadvantaged communities. The mediator in this model not only assists the participants to discuss and agree solutions, but actively signposts other available resources that may provide further support within the FRCs, such as counselling, play therapy, parenting courses, support groups and referrals for mental health or addiction issues. Applicants are offered a very fast service, accessing a first appointment within ten days, and emerge from the process with legally enforceable agreements if requested by the parties. The aims of the project are to demonstrate the efficacy of the family mediation process involved; to examine methods of means testing; to show the cost of providing a subsidised mediation service if the state is not willing to continue to fund all cases into the future; to support mediation in areas of social disadvantage, especially in relation to disputes involving children; and to demonstrate the importance of ensuring that mediated agreements can be capable of enforcement. In this way, the project aims to contribute to public policy and governmental decision making in the area of family mediation; and more specifically, to support the evolution of the process in Ireland. In addition to the Family Mediation Project, the authors are carrying out research in the district court and received ministerial consent to attend incamera family law cases. This research seeks to understand what kinds of issues are being adjudicated by the courts and whether litigants have tried mediation or have been asked by the court to consider trying mediation. The authors have attended family law lists in five different geographical locations to date,20 witnessing and logging hundreds of cases. This research is ongoing, as it includes all aspects of family law adjudicated at this level. However, the number of cases observed allows for some preliminary findings which shed light on family mediation in Ireland. The authors have observed 360 private family law cases, the majority of which related to child maintenance and access (parenting) disputes. We found that mediation had not been tried in any of the cases before the court; that mediation was mentioned as an option in 1 per cent of cases by a litigant or his or her legal representative, but rejected by the other party; that in 1 per cent of cases, an adjournment was agreed to try mediation; and that in 1.3 per cent of cases, the judge recommended mediation but the litigants rejected that recommendation, seeking a determination from the judge. All judges in Dolphin House, where the FMS has mediators in the building, asked litigants to consider mediation at the start of the day at call-over, when all litigants and their legal representatives come into the courtroom, the list for the day is read out and the judge determines the running order 60

Ongoing research in which he or she will hear cases. Despite these exhortations, litigants are clearly not choosing mediation as a dispute resolution option. Why this remains the case is unclear; but it may be that at least one party, having engaged in the litigation process from both an emotional and financial perspective, has become overly invested in seeking an adjudicated outcome. Submissions to the Oireachtas Joint Committee on the General Scheme of the Mediation Bill in 2012 indicated that significant numbers of parties involved in disputes seek a resolution of their dispute through the courts without considering mediation ‘because they are neither aware of nor do they fully understand the process’ (Houses of the Oireachtas Joint Committee on Justice, Defence and Equality 2012: 8). There was considerable divergence between the operation of the Dublin District Court and courts in other locations. The most notable difference was the very high number of lay litigants in Dolphin’s House, in contrast to much lower numbers elsewhere. In Dublin, 62 per cent of all litigants were lay litigants (self-representing); in the other four rural courts, 25 per cent of all litigants were lay litigants. Long waiting lists for legal aid in Dublin were probably a trigger for a movement towards the higher number of lay litigants there. This was followed by a monumental shift in practice by court services to support and facilitate lay litigants, which was so successful that legal representation became unnecessary. We found judges to be very proficient at handling lay litigants: they were very clear and courteous in their communication with parties, and adopted an inquisitorial approach, which was necessary to glean the appropriate information from the parties. Where one or other party was represented by a legal aid solicitor, this was very helpful to the judge; but overall, the system was very fast, efficient and effective, and everyone seemed to have adapted to the absence of lawyers. In contrast, it was hard to imagine the regional district courts operating without the support of solicitors – mainly because they were characterised by very long lists due to the limited number of days allocated to family court hearings.21 Even in a small country such as Ireland, there can be enormous geographical and operational variations, which can have a differential impact on how family mediation fares. The FMS is based in Dolphin’s House District Court in Dublin, which is the busiest family court in the country, offering a free and easily accessible service, highlighted to clients as soon as they come into the building. We found that judges always stressed the desirability of mediation as an alternative to litigation at the call-over and actively encouraged parties to engage with the practice. They facilitated parties who came to agreement by making orders on consent, moving these cases to the top of the list. Yet we saw no mediated agreements coming into court. There were few references to mediation beyond the judge extolling its usefulness. This may indicate that parties who mediate their agreement do not proceed to have it turned into a court order and therefore do not need to return to court. However, it is also true to say that in 2017, only 265 mediated agreements were noted as completed by the FMS in Dublin (Courts 61

Family mediation: the Irish perspective Service 2017: 41). Of course, this represents a considerable benefit to the families who engaged in the process; yet it must be seen in light of the fact that multiple family courts sit in this location, hearing hundreds of cases every week. So, we are left with the same problem of a failure to attract potential clients to mediation. In this instance, it is probably due to the fact that Dublin litigants have an accessible, efficient and free court service available to them; there is no incentive to do the work of reaching their own agreements. So mediation has the task of persuading people of its benefit to them, even in the face of a court system which is functioning well.

The genesis of the Mediation Act 2017 The Mediation Act 2017 had a long incubation period and certainly did not emerge as a bolt from the blue into an unsuspecting Irish legal system. The Act itself originated in 2010 as a draft Bill attached to a Law Reform Commission Report on alternative dispute resolution which dealt with mediation in detail and recommended statutory provision for the training and regulation of mediators (Law Reform Commission 2010). However, it was clearly part of a broader movement in Irish law that pre-dated the report and pointed towards recognising and facilitating mediation in many areas of practice, especially in the civil and commercial fields. Numerous statutes followed the lead of family law in ensuring that solicitors advise litigants of the availability of mediation, while mediation was also incorporated into statutory systems of dispute resolution.22 In addition, the Rules of the Superior Courts23 were amended to facilitate mediation through invitation to consider mediation, case adjournment and extension of time to avoid limitation periods running out. The judiciary and the legislature have been at one on this approach, with judges highlighting cases that would have been better suited to a mediated approach even at the conclusion of litigation. As Hogan J remarked in a High Court dispute between parents: ‘I  would, however, venture to suggest that it would be very desirable that disputes of this kind might be resolved through mediation rather than the acrimony which is inevitably generated through the judicial process.’24 In tandem, the EU Mediation Directive reinforced many of these developments, such as the invitation to mediate and the extension of limitation periods. Fundamentally, it expressed the desire to support a voluntary, quality-controlled, confidential mediation process in cross-border disputes which leads to legally enforceable mediated settlements.25 These are the broad themes that re-emerge in the Mediation Act 2017.

The Mediation Act 2017 The Act took seven years to make its way from draft Bill to fully commenced legislation. This was not a reflection of its controversy, but rather of the complexity of more pressing issues, such as new legislation dealing with 62

The Mediation Act 2017 family relationships and assisted decision making, which competed for the time and attention of legislators. Its very lack of controversy left it sitting without any real political drive to advance it. The historic lack of legal regulation of the industry ensured that the mediation sector in Ireland developed a high degree of diversity, which meant that it spoke in a variety of inconsistent voices, unhelpful to policy makers. The Act purports to address all areas of mediation, not just family mediation, and this creates tension in the legislation. However, it clearly reflects a legal consensus established over many years concerning the general shape of mediation and its interaction with the legal system, in line with pre-existing law, judicial pronouncement and EU policy. Despite the slow development of this law, its enactment in January 2018 in its entirety, followed swiftly by court rules,26 took legal practitioners and mediators by surprise.

It is, at its heart, a law to facilitate mediation. It seeks to achieve this goal by setting out the key principles of mediation and specifying the arrangements for mediation in a way that understands the interaction between mediation and civil litigation. In addition, it seeks to support the profession by regulation through codes of practice and the establishment of a Mediation Council, comprised of no fewer than 11 members, of whom six represent the public interest, independent of the interests of mediators.27 This body will be established to communicate with the Minister for Justice and must be sufficiently representative of ‘mediation interests involved in the mediation sector’.28 While it is hoped that this approach will encourage the sector’s different voices to converge and sing from the same hymn sheet, clear differences of opinion as to how the profession of mediation in general, and family mediation in particular, should develop are evident from the written and oral submissions made to the Joint Oireachtas Committee on Justice, Defence and Equality in relation to the Mediation Bill (Houses of the Oireachtas, Joint Committee on Justice, Defence and Equality 2012). While some of the principles that apply to mediation where there is a family law dispute can also be applied to mediation in civil disputes generally, the Committee’s report notes that there are some considerations particular to the resolution of ‘family law dispute mediation’ (Houses of the Oireachtas, Joint Committee on Justice, Defence and Equality 2012: 8). The Committee recognised that tensions can exist between innovation and flexibility, resulting from the diverse approaches in the practice of mediation in Ireland (Houses of the Oireachtas, Joint Committee on Justice, Defence and Equality 2012: 10). The authors participated in a working group convened by the Legal Aid Board with a view to forming the Mediation Council of Ireland.29 In March 2019, a proposal was submitted to the Minister for Justice identifying organisations that could nominate members for five seats to represent the interests of mediators, whether those mediators are in full-time practice or mediate in addition to another area of professional practice.30 The Act envisages that mediation information sessions will, in time, be rolled out to all parties in family or succession law proceedings. In essence, the law 63

Family mediation: the Irish perspective seeks to provide recognition and encouragement to an emerging mediation sector without threatening the civil justice system in the process. This effort to ensure that existing systems are not disrupted is evident from the start. The Act excludes all arbitration, which is subject to its own legislative arrangements; disputes to be dealt with by specialist bodies, such as the Workplace Relations Commission; and certain proceedings under taxation legislation. Judicial review proceedings are also excluded, as are proceedings against the state alleging infringement of fundamental rights and freedoms of a person. More controversially for the purposes of family mediation, the Act excludes proceedings under domestic violence and child protection legislation.31 This may have been designed to serve a protective function, so that a court cannot shunt vulnerable people into mediation to avoid dealing with their applications and important constitutional and legal rights cannot be compromised without judicial scrutiny. However, in a completely voluntary mediation model, it could be interpreted as denying applicants the ability to engage in mediation once they have filed for a domestic violence order. An alternative reading of the exclusion would allow mediation to proceed, conducted outside of the protections of the Act, again disadvantaging litigants. Research findings in the area of child protection recommend the use of mediation prior to the making of a child protection application and when the child is in care, in the interests of reducing the conflicts created by disputes about issues such as access (Child Law Reporting Project 2014: 29). It will take time to untangle the impact of this legislative decision and to ensure that it does not have the unintended consequence of preventing those who might benefit most from engaging in family mediation. Equally, the late addition of s  14.(1)(d) may impact on the uptake of mediation where a solicitor believes that the safety of a client or the children of that client is at risk.32 It should be noted that the FMS has a comprehensive domestic abuse policy and offers mediation after a protection order is in place, granted as an ex parte application and before the hearing, and in some cases where a safety order or barring order is already in place, where mediation is requested by the applicant and subject to the outcome of a screening process (Legal Aid Board 2019: 77–81). The model of mediation envisaged by the Act is facilitative and voluntary. The Act epitomises the vision of mediation as a voluntary, confidential, out-of-court process which runs alongside the civil justice system, remaining available at all times to litigants, but never undermining their right to access the court or resume litigation. It is uncontroversial that a party may withdraw from mediation or obtain independent legal advice at any time. Equally, the Act shows consistency in the provision that it is for the parties to determine the outcome of the mediation. Similarly, the right of the mediator to withdraw after the parties are given notice in writing of the reasons is unexceptional. However, the Act also stipulates that a party may be accompanied to mediation and assisted by a person, including a legal adviser, who is not a party.33 This provision was included at the insistence of those who work in employment mediation, where it is 64

The Mediation Act 2017 common practice; but it is very problematic for family mediators. There are prices to be paid for an Act which deals with all aspects of mediation when mediation practices diverge. The agreement to mediate is central to establishing the ground rules for mediation and must be signed before the mediation commences. Mediators are expected to declare conflicts of interest, complete the mediation expeditiously, act impartially and ensure the parties are aware of their right to seek legal advice.34 Under s  8(3), the mediator ‘shall not make proposals to the parties to resolve the dispute’. However, under s  8(4), the mediator ‘may, at the request of the parties, make such proposals to resolve the dispute’, which the parties are free to accept or reject. This is a compromise to reconcile different models of mediation practice, but illustrates the dominance of the facilitative over the evaluative model in Ireland.35 A  case may be adjourned after an appearance is entered if the parties have an agreement to mediate and a party commences proceedings,36 showing the binding nature of the agreement to mediate. The act addresses confidentiality in the time-honoured legislative tradition of establishing a principle and then listing the exceptions. All communications, including oral statements, and all records and notes relating to the mediation attract confidentiality and ‘shall not be disclosed in any proceedings before a court or otherwise’.37 This is a significant and welcome understanding that confidentiality is not the privilege of the client, but necessary to protect the process. In contrast to legal professional privilege, a mediation client cannot waive privilege by consenting to disclosure by the mediator. By choosing process confidentiality over party privilege, the legislation has protected the mediation process and ensures that it can be practised freely without having to engage in endless confidential caucuses and shuttle diplomacy, in fear of a party waiving privilege at a later date (Van Dokkum 2012). There are always exceptions to confidentiality and they are well established. Confidentiality does not apply where disclosure is necessary to prevent physical or psychological injury to a party; or to prevent or reveal the commission of a crime or attempt to commit a crime, conceal a crime or threaten a party. In addition, disclosure may be necessary to implement or enforce a mediation settlement or relevant to a civil claim of negligence or misconduct against a mediator. Discoverable documents do not become inadmissible or privileged due to their use in the course of mediation, so that mediation is to be supported in a way that has considered its implications for the operation of the civil justice system (Smith 2017). A court, on the application by either party or of its own motion, may invite the parties to consider mediation or provide the parties with information about the benefits of mediation to settle the dispute. If the parties proceed, the court may adjourn the proceedings, make an order extending time for compliance with the rules of court or give directions to facilitate mediation.38 However, if the parties engage in mediation and subsequently 65

Family mediation: the Irish perspective apply to the court to re-enter the proceedings, the mediator must prepare and submit a written report to the court which either explains why mediation did not take place or, if it did, state whether a settlement has been reached and the terms of the settlement. It would seem that this acts as a limit to the confidentiality of mediation so that the terms of a settlement or partial settlement must be reported in open court. Yet it could be argued that this necessary limit on confidentiality is a small price to pay for the enforceability of a mediation settlement. Many family mediators in Ireland offer the transformative, non-legally binding model, where agreements are expressed as ‘not intended to be legally binding’; this approach may be problematic, as it facilitates clients who may wish to use family mediation as a way to delay legal proceedings or to gather information on an opponent’s case. This involves a two-step approach, with mediators followed by solicitors. A  mediator drafts an agreement, decides that it will not be legally binding and indicates that it should be taken to solicitors representing either party, who between them subsequently draft a legally binding agreement after the mediation process has ended. The clients who participate in this two-step approach not only incur additional time and costs, but may find their agreement under scrutiny in the traditional adversarial legal advocate approach, which may result in changes to the intentions of both parties (O’Shea 2013). The model used by the FMS is this transformative model,39 with non-legally binding agreements Legal Aid Board 2019: 21) and a focus on process rather than outcome, popular with non-lawyer mediators. Even after the commencement of the Act in January 2018, the FMS has continued its policy of offering only non-legally binding agreements as an output of the service and does not give the choice to clients to create an agreement that is capable of being enforced between them.40 FMS mediators are obliged to inform the clients that they will incur legal costs to convert a mediated settlement into a legally binding agreement (Legal Aid Board 2019: 29). So while the family mediation service provided by the state may be free, there are legal costs involved for parties to subsequently secure a legally binding agreement after mediation is concluded. The Act in s 11 provides that the parties themselves may decide whether they want a legally binding agreement. However, the approach of the FMS is that the parties are asked to contract out of this right at the outset when they sign the agreement to mediate. The parties may not understand that they are contracting out of a legal right, as the FMS agreement to mediate is silent on this, instead making a statement in clause 1 that ‘any agreement reached at mediation is not legally binding until incorporated into a formal legal agreement’ (Legal Aid Board 2019: 67). Of note is that the Legal Aid Board sets out its own policy ‘that mediated agreements are not legally binding, unless or until they are turned into a legal document’. The basis for this policy is the stated position ‘that the process of mediation does not go through the legal steps required to assure such legal due process’ (Legal Aid Board 2019: 59). This policy contravenes public policy as enunciated by the legislature in the Mediation Act 2017. This 66

The Mediation Act 2017 policy would also not appear to be supported by the Bar of Ireland, which acknowledges the right of the parties themselves to determine whether a mediation settlement is to be legally binding.41 In contrast to the transformative, non-legally binding approach, private family mediators have as standard practice drafted separation agreements in mediation prior to the commencement of the Mediation Act 2017 (Shannon 2011: 32). The professional tension on the ground between family law solicitors and family mediators centres on whether a mediator should draft an agreement that is capable of legal enforcement. The Act has effected a very satisfactory compromise in this respect, where it is the parties who determine whether the mediated agreement, drafted by the mediator, is to be legally binding.42 However, it should be noted that a mediation settlement operates as a contract between the parties, except where it is expressly stated to have no legal force until it is incorporated into a formal legal agreement or contract to be signed by the parties.43 Therefore, the expectation is created that the mediation settlement will be legally binding and enforceable as a legal contract, and the resulting requirement is that the mediator should have competence to draft a legally binding agreement. On the face of it, the Act appears to facilitate the two styles of family mediation that have emerged in Ireland: family mediators who offer the traditional, non-legally binding form of settlement; and family mediators who offer a mediated agreement that is capable of enforcement as a contract, once signed by the parties. However, all is not as it seems, as the choice to have a legally binding agreement, or not, lies with the parties themselves,44 not with the mediator; therefore, it follows that family mediators who wish to continue offering only non-legally binding agreements will find themselves operating against the policy of the Act. Section 11(3) of the Act provides that the terms of a mediation settlement may be enforced by a court, except where that settlement does not adequately protect the rights and entitlements of the parties and their dependants (McRedmond 2018: 86); where it is not based on full and mutual disclosure of assets; where a party has been overborne or unduly influenced by any other party in reaching the agreement; or where the settlement is contrary to public policy.45 In a mediation settlement relating to a child, the court is bound by the principle of the best interests of the child in determining any application in relation to the settlement. A  well-conducted family mediation, where the parties have provided comprehensive and vouched affidavits of means, accessed independent legal advice and been assisted in the creation of a settlement by a professional mediator, will result in a legally enforceable agreement, as it should. The role of the solicitor during the family mediation process, and indeed any mediation process, is also clearly set out in the Act. Section 7(e) obliges a mediator to ensure that the agreement to mediate contains the information that each party has a right to seek legal advice during the course of mediation. Section 6(4)(c) further underpins the right of 67

Family mediation: the Irish perspective a party to a mediation to obtain independent legal advice ‘at any time during the mediation’, and s  8(2)(d) of the Act obliges the mediator to ensure that the parties are aware of their right to obtain legal advice before signing any agreement. The Act therefore provides that the role of a solicitor while mediation is underway is to provide legal advice to the client at any stage during mediation and particularly before the client enters into any agreement, which will, of course, involve reviewing any draft agreements in order to provide that advice. In terms of the practice of private family mediation, this means that the parties will incur some legal costs to have a mediated agreement that they intend to be legally binding; but this does ensure that any such agreement – particularly consent terms for judicial separation or divorce – is likely to be accepted by the courts, as the parties will have had the benefit of legal advice. The FMS does not automatically offer legal aid solicitors to both parties to take the further step in order to have a legally binding agreement that their policy requires (Legal Aid Board 2019: 54), which means that legal costs will be incurred by the parties. Some solicitors have enunciated the view that where a separation agreement intended to be legally binding is drafted by a mediator, a solicitor will not be able to provide legal advice on that agreement, on the basis that he or she has not drafted the agreement.46 Notwithstanding that this position would negate the intentions of ss 6,7, and 8 of the Act, it would imply that a specialist drafting skill is required, when the Law Society47 provides template documents to family law solicitors which obviate the need to create such an agreement de novo. To rebut this contention, the Mediation Council of Ireland, once established, can provide template documents to all family mediators and set the training and professional development requirements such that family mediators have sufficient legal knowledge to work with these templates, whatever their professional background. The Act will continue to provide the requisite oversight which ensures that the parties to a mediation will be aware that they should seek legal advice both during mediation and before they sign a mediated agreement. Co-mediation is also frequently used in family mediation and each mediator may bring different competencies to that work. A trained accountant who mediates will bring specialist knowledge that will assist with exploring any proposals by the parties that involve financial decisions or division of assets, including pensions, and the co-mediator may have sufficient family law knowledge to ensure that any resulting agreement is capable of enforcement. Neither is providing financial or legal advice; rather, their additional competencies assist the option development process48 in mediation. The legislation supports a ‘twin track’ philosophy of mediation and litigation through various measures, such as the extension of limitation periods once an agreement to mediate is signed until 30 days after the mediation settlement is signed or the mediation is terminated, whichever is earlier.49 Before proceedings may be issued, a solicitor must advise the client to consider mediation and provide information on the process, including its 68

Conclusion voluntary nature, confidentiality and the enforceability of settlements. All proceedings must be accompanied by a statutory declaration to this effect. Where a case has been referred to mediation by a court, it may have regard to any unreasonable refusal or failure of a party to consider using mediation or to attend mediation in awarding costs in the litigation.50 This is the sting in the tail which compels legal professionals to ensure that clients take the ‘invitation to mediate’ seriously.

Conclusion Family mediation in Ireland is long established and well supported, financially and legally. It has experienced innovation and has passionate advocates. It ought to be thriving; the family courts should be empty. But they are heaving with people. It turns out that accessibility and legal recognition are not sufficient to change a culture where the first port of call is a solicitor. The majority of people whose relationships have broken down and who find themselves in dispute are still choosing to travel a perplexing, lengthy and costly path, with the unrealistic expectation that ‘justice’ will be delivered on their day in court. The reality is that a brief hearing dealing with complex issues will inevitably fail to adequately address the needs of either litigant or their children. The greatest weakness of mediation, and family mediation in particular, is its diversity of offering and inconsistency of delivery, with multiple approaches, each guarded jealously as the one true way. Mediated agreements that come before the Irish family courts for scrutiny show the lack of consistency that exists. Agreements are frequently entered into without adequate financial disclosure, are written in unenforceable language or contain clauses that indicate they are not intended to be legally binding even where the context is legally significant, such as a legal separation. Insufficient legal knowledge on the part of the mediator can result in agreements that are contrary to public policy or show disregard for possible legal outcomes (O’Shea 2013). In this context, the Mediation Act 2017 is a welcome legislative intervention, consistent with law and policy established over decades. It is a consolidation of legal output and the logical conclusion of what has gone before. It represents some change, but nothing that threatens the right of access to the courts. It is not a radical break from the civil justice system as much as an attempt to give mediation a little space to breathe within it. It goes a little further than the well-established responsibility of the solicitor to make family law clients aware of mediation and certainly, mediation information sessions are an innovation. However, it is evident from the Legal Aid Board pilot scheme, and indeed the experience of England and Wales, that providing mediation information to potential users of the service is not sufficient to turn large numbers of clients away from the courts and towards a more appropriate mechanism 69

Family mediation: the Irish perspective for dispute resolution (McGowan 2018). Given the low uptake of the free state mediation service, it may just be that mediation information sessions need to be radically overhauled to encourage greater uptake. It must be acknowledged that a free to all, all-issues state family mediation service accessible across the country is impacting negatively on the development of fee-based private family mediation. It must also be acknowledged that the requirement for solicitors to discuss mediation as an option on separation and divorce has had little impact to date on the use of family mediation. Hence, the recommendation of the Law Reform Commission (2010) may need to be revisited and revised, such that not only would solicitors provide information about mediation and mediators, but clients would also be required to sign a certificate confirming that this information had been provided. This recommendation was opposed by the legal profession, which tends to assume that a legislative push for mediation involves a zerosum game for the profession (Armstrong 2018). While some lawyers are implacably opposed to mediation, others welcome the Act as a good start to encourage the mediation of disputes (Walsh 2018). The establishment of the Mediation Council of Ireland – demonstrating cohesion and unity within the industry, supporting professional standards and encouraging the growth of mediation – is a step in the right direction. Coherent and clear tools for the court to use when the judge is convinced that a case is appropriate for mediation are another. Reducing the value added tax rate for family mediation and family law solicitors would reduce costs for users of family mediation. However, these steps in themselves do not add up to anything that is radically different from the present system. A culture shift is required, and this is something that must take place among the people who find themselves with a dispute to resolve. Ireland has experienced radical cultural shift in the last two decades – what is one more?

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Endnotes   1 Family Law (Divorce) Act 1996  2 Bunreacht na hÉireann, Constitution of Ireland, enacted 1 July 1937.  3 See the preliminary census results for 2016; accessed online at www.cso.ie/en/ releasesandpublications/ep/p-cpr/censusofpopulation2016-preliminaryresults/ on 7 April 2018.   4 Thirty-first Amendment of the Constitution of Ireland,10 November 2012.   5 Thirty-fourth Amendment of the Constitution of Ireland, 22 May 2015.   6 Thirty-sixth Amendment of the Constitution of Ireland, 25 May 2018.   7 Children and Family Relationships Act 2015, Part 2 to Part 4.   8 Article  41.3.2 states: ‘A  Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that – i. at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years…’   9 Article 41.2 states: ‘1. In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved. 2. The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’ 10 ‘Mediation is defined as family mediation, which encompasses married clients, un-married cohabitees, same sex married clients, civil partnerships, clients who have never lived together but have a child or children together; it could also include interfamily disputes involving adult siblings, parents and adult children, step-parents and children, grandparents and parents, biological and foster parents, biological and adoptive parents and any other family permutation.’ Legal Aid Board, Mediator Professional Practice Handbook (LAB, 2019) 2.2 p9. 11 For example, Family Law (Divorce) Act 1996, ss 6(2)(b) and 7(2)(b). 12 See the Mediators Institute of Ireland; accessed online at www.themii.ie/about-mii/ mission-statement on 5 May 2019. 13 See the Legal Aid Board; accessed online at www.legalaidboard.ie/en/our-services/ family-mediation/find-a-mediation-office/ on 22 April 2019. 14 The shortest wait time to access the FMS service is at the Dolphin House location, with immediate access to the service. The next shortest wait period is four weeks, with up to 48 weeks in County Louth. The average wait time across 16 locations, excluding Dolphin House, is 15.2 weeks, with a median wait time of 11.5 weeks. 15 The Family Mediation Project is a not-for-profit means-tested research initiative by Waterford Institute of Technology, based on a family mediation model developed by Dr Róisín O’Shea. It is an inter-disciplinary, evidence-based social science research project, following on from empirical research, from 2013 to the present day. 16 Mediation Act 2017, s 14 (a). 17 In accordance with Article 12 of the UN Convention on the Rights of the Child. 18 Association of Family and Conciliation Courts (AFCC) International Conference, Los Angeles 2013; International Conference on Shared Parenting, University of Bonn 2014; the International Foster Care Organisation Annual Conference, Waterford Institute of Technology (WIT) 2014; AFCC annual conference, New Orleans 2015; ‘Access to Justice’, WIT and AFCC  Family Justice seminar, April 2016; International Conference on Shared Parenting, Boston 2017 and AFCC annual conference, June 2017; ‘Modern families, modern family justice’, Relate and AFCC workshop, Windsor 2018; ‘Better decisions in private family law’, Nuffield Foundation and AFCC, London 2018. 19 The Family Resource Centre programme is funded by the Child and Family Agency and is Ireland’s largest family support programme, delivering universal services to families in disadvantaged areas across the country. 20 Findings from research period 6  March 2017 to 8  April 2019; 360 cases observed; 14 randomly selected days in court, nine judges observed; 42 per cent of the cases observed were in Dolphin House, with the remainder observed in four rural district courts – Kilkenny, Carlow, Wexford and Waterford. 21 We attended a family court in Carlow on 17 May 2018 which had 90 cases on the list for that day alone, excluding ex parte applications for domestic violence. 22 For a list, see Sammon, ‘Mediation in Ireland: Policy Problems’ 57 Irish Jurist 175, at p184.

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Family mediation: the Irish perspective 23 RSC 1986, Ord 56A, r 2. 24 BB v AA [2013] IEHC 394, 39.5 25 Council Directive 208/52/EC  [2008] on Certain Aspects of Mediation in Civil and Commercial Matters. 26 District Court (Mediation) Rules (SI  2018/9), Circuit Court Rules (Mediation) 2018 (SI 2018/11), Circuit Court Rules (Family Law: Mediation) 2018 (SI 2018/12) and Rules of the Superior Courts (Mediation) 2018 (SI 2018/13). 27 Mediation Act 2017, s 12 (4). 28 Mediation Act 2017, s 12(4)(b). 29 Mediation Act 2017, s 12. 30 Three of the proposed organisations also represent professions other than mediation – The Law Society, The Bar of Ireland and the Chartered Institute of Arbitrators – and it is proposed that the remaining two member seats be held by the Mediators Institute of Ireland and Community Mediation. 31 The Mediation Act 2017, s 3 (h) and (i). 32 ‘(d) advise the client that mediation is voluntary and may not be an appropriate means of resolving the dispute where the safety of the client and/or their children is at risk…’ 33 Mediation Act 2017, s 6. 34 Mediation Act 2017, s 7. 35 Mediation models can be viewed as a spectrum where, at the extreme ends, evaluative mediators intend to direct some or all of the outcomes, while highly facilitative mediators adopt strategies intended to allow the parties to communicate. See Riskin (1996). 36 Mediation Act 2017, s 19. 37 Mediation Act 2017, s 10. 38 Mediation Act 2017, s 16. 39 First articulated by Bush and Folger (2004). 40 ‘It has been clear policy of the Board that Mediated Agreements are not legally binding unless, or until, they are turned into a legal document. Our policy is that, while a Mediated Agreement may ultimately be turned into a legally binding document, by due process, the process of mediation alone does not go through the legal steps required to assure such legal due process.’ Legal Aid Board, Mediator Professional Practice Handbook (LAB, 2019) 4.4, p59 41 The Bar of Ireland is the representative body for the barrister profession. The Bar of Ireland, ‘Alternative Dispute Resolution’, accessed online at www.lawlibrary.ie/LegalServices/Alternative-Dispute-Resolution.aspx on 12 July 2019. 42 Mediation Act 2017, ss 11(1)(b). 43 Mediation Act, ss 11(1) and (2). 44 Mediation Act 2017, s 11(1)(b). 45 Mediation Act 2017, ss 11(3)(a) and (b). 46 This has been the direct experience of the author, Dr Roisin O’Shea, a full-time mediator, who has completed hundreds of family mediations since 2009. 47 The representative body for solicitors in Ireland. 48 Mediation Act 2017 s 8(4) 49 Mediation Act 2017, s 18. 50 Mediation Act 2017, s 21.

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References Armstrong, F  (2018) ‘Mediation in the Mainstream’, Law Society Gazette, Issue 28 28–31. Bush, RA and Folger, JP  (2004) The Promise of Mediation: The Transformative Approach to Conflict (Chichester: Wiley). Child Law Reporting Project (2014) Second Interim Report; accessed online at www.childlawproject.ie/wp-content/uploads/2014/10/Interimreport-2-Web.pdf on 14 February 2020. Conneely, S (2002) Family Mediation in Ireland (Dartmouth: Ashgate). Courts Service (2016) Annual Report; accessed online at www.courts. ie/Courts.ie/library3.nsf/(WebFiles)/300A3D2A10D824E88025816800 370ED2/$FILE/Courts%20Service%20Annual%20Report%202016.pdf on 5 June 2018. Houses of the Oireachtas Joint Committee on Justice, Defence and Equality (2012) Report on Hearings in relation to the Scheme of the Mediation Bill (Dublin: Government of Ireland). Law Reform Commission (2010) Alternative Dispute Resolution: Mediation and Conciliation LRC 98–2010. Legal Aid Board (2017) Annual Report; accessed online at www.justice.ie/ en/JELR/LAB_Annual_Report_2017_English_version.pdf/Files/LAB_ Annual_Report_2017_English_version.pdf on 14 February 2020. Legal Aid Board (2019) Mediator Professional Practice Handbook; accessed online at www.themii.ie/ckeditor_uploads/files/Legal%20 Aid%20Board%20Mediator%20Professional%20Practice%20Handbook%20 Abridged%20Version%20January%202019.docx on 17 February 2020. McGee, H, Garavan, R, De Barra, M, Byrne, J and Conroy, R (2002) The Savi Report, Sexual Abuse and Violence in Ireland (Dublin: The Liffey Press). McGowan, D  (2018) ‘Reframing the mediation debate in Irish all-issues divorce disputes: from mediation vs. litigation to mediation and litigation’, Journal of Social Welfare and Family Law, Vol 40 Issue 2 181–92. McRedmond, P (2018), Mediation Law (London: Bloomsbury). O’Shea, R  (2013) ‘Judicial Separation and Divorce in the Circuit Court’, PhD thesis, Waterford Institute of Technology; accessed online at https:// repository.wit.ie/2825/1/thesis_ROS_WITLIB_201405final.pdf on 17 February 2020.

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Family mediation: the Irish perspective Riskin, L (1996) ‘Understanding Mediator’s Orientations, Strategies and Techniques: A Grid for the Perplexed’, Harvard Negotiation Law Review, Vol 1 Issue 7 7–52. Shannon, G (2011) Family Law (4th ed) (Dublin: Law Society of Ireland). Sammon, G  (2017) ‘Mediation in Ireland: Policy Problems’ Irish Jurist, Vol 57 175–86. Smith, WM (2017), ‘The Mediation Act’, Bar Review , Vol 22 Issue 6 160–63. Sweeney, D and Lloyd, M (ed) (2011) Mediation in Focus: A Celebration of the Family Mediation Service in Ireland (Dublin: FMS). Van Dokkum, N (2012) ‘Mediation Privilege: What are we really talking about?’ Part 1, Irish Law Times, Vol 16 236–41; Part 2, Irish Law Times, Vol 17 254–58. Walsh, K (2018) ‘The Inbetweeners’, Law Society Gazette, Vol 28.

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Chapter 5

Family mediation: the Scottish perspective Anne Hall Dick

Introduction The aim of this chapter is to outline the context for the development of family mediation in Scotland, mediation’s relationship to the Scottish civil justice system and the evolution of family mediation in Scotland with regard to practice, training and procedure. It considers the impact of the Scottish political, legal and cultural setting on the development of mediation in Scotland. The chapter explores how this has contributed to family mediation in Scotland being less mainstream than in neighbouring countries, including England and Wales and Ireland, and influenced the extent to which children have an active voice within the mediation process in Scotland. It further considers the current disconnect between the professionalism rightly expected from and delivered by mediators and the amount of mediation work and remuneration for undertaking it which is available. The chapter starts by setting out the context and goes on to consider the evolution of family mediation in Scotland within that context, finally examining current practice, training and procedure. In this chapter I am drawing on my personal experience since becoming aware of the development of family mediation in the 1980s. I was a member of one of the local committees grappling with funding and training to enable family mediation to be introduced in the West of Scotland. I trained as a family mediator with the Scottish Association of Family Conciliation Services and then in all-issues mediation with the Family Mediators Association in England, before becoming the first mediator accredited by the Law Society of Scotland (LSS) in 1993. I have more recently trained in child-inclusive and online mediation. From 1993 until 2017, when I retired from practice as a family lawyer, I  worked as an accredited family law mediator as part of my legal practice. Since 2017, I have worked freelance as a family mediator, registered with Scottish Mediation (SM). I have been and continue to be involved in the development and delivery of mediation training for family lawyers in Scotland.

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Context – the political, legal and cultural setting Mediation provides a flexible, adaptable approach to dealing with disputes and change, combining a core process and skills with the capacity to be responsive to context. The context is like Russian dolls with various layers: the outer layers are the wider political, legal and cultural setting; the inner core, in family mediation, the specific dynamic in a particular family. Starting with the outer layers: on the political front, Scotland had a separate framework for social work, law and education even before the first session of its own Parliament on 12 May 1999. Those aspects were retained in the Scottish Parliament’s devolved powers. The country has a small population, encouraging cooperation between and among professionals from various backgrounds. Scotland has a Calvinist legacy which even today leaves a cultural fingerprint (Craig 2011). These factors are the backdrop to the development of mediation in Scotland. In respect of the legal framework, private decision making is encouraged in Scotland. Written agreements which are entered into by separating couples, whether married or unmarried, do not require the approval of a court. Despite that, the relevant legislation on financial provision still has an impact on expectations, and thus outcomes. The law provides objective guidelines where a separating couple’s shared sense of fairness is frayed, although judicial decisions are invoked to regulate disputed matters only as a last resort. An early finding during the research into the operation of the Family Law (Scotland)(Act) 1985 covering financial provision in Scotland for married couples (or civil partners, for whom the rules are the same) noted that: ‘There is a clear trend towards private settlement. There were 10,000 divorces or dissolutions granted in 2010 and an estimated 5,000 separation agreements registered in that year, making a ratio of approximately 1:2. Similar research, relating to agreements registered in 1992, found an estimated number of 3,000 agreements as compared with about 12,500 divorces, a ratio of 1:4, showing a significant increase in the use of agreements over that period.’1 Private ordering may be informal; but where the arrangements need to be formalised, they are captured in a written agreement, usually negotiated by lawyers, and registered in the Books of Council and Session, which renders the agreement enforceable. A  divorce must be granted by the appropriate court (usually the local sheriff court), but that step is a relatively straightforward legal procedure if the arrangements for children, money and property can be sorted out before the divorce action is started. Divorce can proceed on a no fault basis with consent after one year’s separation. 76

Context – the political, legal and cultural setting This admirably non-litigious approach has had an unexpected impact on the development of mediation in Scotland in respect of solicitor referrals. The emphasis on private ordering demonstrates that family lawyers in Scotland act primarily as negotiators rather than litigators. They tend to know one another within their own community and – partly because of the network created by the Family Law Association and related networks in Scotland, and the relatively small number of lawyers involved – often in other areas of Scotland. There are about 300 members of the Family Law Association in Scotland.2 There are about 6,500 members of Resolution, the organisation for family lawyers in England and Wales.3 Lawyers specialising in family law in Scotland will usually know local counsellors, psychologists, social workers and teachers through both work and social connections, and will generally see themselves as approaching matters in a cooperative and problem-solving manner, as reflected in research by Fiona Myers and Fran Wasoff into solicitors’ and mediators’ divorce practice, published in July 2000.4 It is easy for a family lawyer to recognise that an adversarial process may cause damage to the future well-being of a family. It is less obvious to see how a negotiated settlement might do so. The danger is that children who are working hard to look after their parents may seem ‘fine’. Amid their own preoccupations, parents may not recognise the separate transition their children have to make. Parents may feel some relief that they no longer have to deal with an ex-partner. The reality of the need to communicate directly after the legal process is over and the benefit of mediation in creating a good platform for future parenting may not be enough to trigger a solicitor referral to mediation where clients report that the children are ‘fine’. In financial matters, if the financial options look fairly clear to the objective eye of family lawyers, it may appear more straightforward to press on using lawyer negotiation to identify terms for a separation agreement than to add in the extra layer of a referral to mediation. The risk here is that what really matters to each client might not surface where matters are dealt with primarily as an arithmetical legal exercise. The submerged unaddressed values could affect longer-term satisfaction for the clients and the future climate between parents. The Children (Scotland) Act 1995 puts the emphasis on parental responsibility, the welfare of children and the importance of enabling children to express their views.5 This provision was to align Scots law with Article 12 of the United Nations Convention on the Rights of the Child. The previous statutory provision, s 3 of the Law Reform (Parent & Child) (Scotland) Act 1986, emphasised parental rights with an underlying basis of control. The 1995 Act was a significant step towards giving young people a voice; although, since only a report by parents of significant problems concerning children is likely to trigger legal alarm bells, there is a risk that those interests and views could be overlooked and the responsibilities filtered through the lens of the parent rather than from the perspective of the child. 77

Family mediation: the Scottish perspective These ‘good enough’ arrangements may be masking a lack of good communication between parents and insight into whether and how what matters to the children is being factored in. This risks overlooking the question of how far young people feel ‘heard’ during the process of separation. Even ten years ago, a summary of the then-current research highlighted the potential benefits of children being allowed an active voice.6 The legislation for financial provision on divorce in Scotland, the Family Law (Scotland) 1985, has proved resilient over the years, with relatively few amendments (most notably allowing for pension sharing and incorporating financial provision for civil partners). It was forward looking and provided for a basic formula to achieve fair sharing with elements of discretion. However, the application of that formula in those cases which do need to be decided by the courts because of a failure to reach agreement underlined the tendency of the Scottish bench to favour certainty over equity. Discretion was used narrowly. Legislation was introduced by the Family Law (Scotland) Act 2006, allowing potential claims where cohabitation ended in separation or death.7 This included a discretionary approach which again was initially interpreted quite narrowly by the Scottish courts. The narrower approach made it easier for Scottish family lawyers to focus on a fairly predictable range of outcomes on the financial front and identify mutually acceptable terms. More recent court decisions indicate a broader approach by the bench and the possibility of more areas of discretion being relevant for cases involving the treatment of pensions.8 The demography of those applying the law has also changed, with more diverse appointments to the bench.9 The wider landscape of the black letter law relating to families in Scotland has changed dramatically in the period of the development of family mediation. Starting in 1981, increasingly robust protection from violence and abuse has been introduced, culminating in legislation specifically recognising coercive control.10 Civil partnership was introduced in 2004.11 The potential legal claims on the ending of cohabitation by death or separation were introduced in 2006, in the same statute which gave unmarried fathers a more secure status.12 Family law in Scotland provides a legal framework which does justice to the complexity of modern family life. So the distinctive elements in Scotland have fostered professional cooperation, but tended to make legal referrals to mediation more likely in cases where there are quite entrenched problems; they may have inhibited the ‘normalisation’ of mediation as assisting a managed transition for families going through separation. The approach to the black letter law until recently appeared adequately served by arm’s-length negotiation. 78

The development of family mediation in Scotland On the cultural front, there may be some significance in the fact that Scotland has a regularly used phrase which succeeds in combining two positive statements to make a negative – ‘Aye, right!’ The Calvinist legacy in Scotland is explored by Carol Craig in her book The Scots’ Crisis of Confidence (Craig 2011). She recognises the benefits that Calvinism brought to Scotland in terms of education and valuing effort and hard work, but observes that ‘in other respects Scottish culture seems to have encouraged negative feelings’, and ‘the Scots tend to see people in terms of good or bad; clever or stupid; generous or selfish; talented or hopeless’. Craig quotes from Sydney and Olive Checkland’s book on Victorian Scotland, which comments that this polarised inheritance ‘left little room for the middle ground upon which real debate about human behaviour could take place, and where most of life resided’ – the very ground which must be explored in mediation (Checkland and Checkland 1984: 133). Arguably, the stick rather than the carrot was the traditional incentive in Scotland; but Scotland has changed even since the first edition of Craig’s book was published in 2003 (partly because of the light she has shone on Scottish culture). The independence referendum in 2014 provided an opportunity to take stock. Much of the discussion and debate in Scotland before the referendum about the kind of country Scotland wants to be was not party political, but instead grappled with how to foster a sense of well-being in the country. The First Minister of Scotland, Nicola Sturgeon, delivered a TED talk in July 2019 which underlined the importance of well-being as an important measure of a country’s success.13 The traces of Scotland’s Calvinist cultural legacy linger – though perhaps its positive aspect of encouragement to acknowledge our social responsibility (also highlighted by Craig) (Craig 2011) is finding more emphasis. Craig comments: ‘This prevailing sense of everybody’s life being inextricably bound up with others is what I most like about the Scots view of the world’ (Craig 2011: 144). The mediation process is well suited to enable ties within families to be reconfigured, rather than severed. Our cultural legacy may tug towards fault and blame rather than finding common ground. To balance all of that, there is an increasing recognition at a political level of the potential of mediation for separated parents, and the growing complexity of the legal rules and their interpretation highlights the benefit of a joint problem solving approach such as mediation or collaborative practice.14

The development of family mediation in Scotland During the 1970s and 1980s, the assumptions from the 1960s that children are resilient and can readily cope with (or indeed potentially benefit from) separation were eroded by research. Ann Mitchell’s book Children in the Middle: Living through Divorce, published in 1985, was based on research involving Scottish families. It ended with a poignant quote from one of the children involved: ‘My Mum didn’t understand how I felt. She was too busy 79

Family mediation: the Scottish perspective being angry’ (Mitchell 1985). The Finer Report on One Parent Families (1974) recommended the use of conciliation and in 1978 a group of social workers and lawyers started a pilot scheme in Bristol which became the first family mediation service in the UK (Parkinson 2014: 8). The first conference on family mediation was organised in Edinburgh in May 1981 by Julie-Ann Macqueen, director of the Scottish Council for Single Parents. A number of committees were set up in different parts of Scotland to introduce what was then also called ‘conciliation’ in Scotland. The committees brought together people from various backgrounds, including medicine, social work, education and law: people who had seen in the course of their own work how children were struggling in the wake of parental separation. The committees themselves deepened the body of shared insight in a valuable way. The first ‘conciliation’ service was set up in the Lothian region in 1984. In 1987 the Scottish Association of Family Conciliation Services (SAFCoS) was set up to provide support for a network of the family mediation services which had developed in Scotland. This evolved into the mediation service under the umbrella of Family Mediation Scotland (FMS), which is now part of Relationships Scotland (RS). RS was formed in 2008 from a merger between Relate Scotland and FMS, bringing together a range of support services for individuals, couples and families with relationship difficulties; relationship counselling and child contact centres are now offered alongside family mediation to provide a more holistic and joined-up service. The remit of mediation in Scotland in the 1980s was to assist parents in their journey through separation and the mediation training which evolved aimed to meet that need. The training focused on issues to do with children, not property. Family lawyers who had been supportive of mediation felt it could be helpful for separating couples to be able to use mediation to tackle financial issues. SAFCoS felt it was not the right time for its services to develop into that area. Training was provided by Lisa Parkinson for experienced family solicitors in Scotland to undertake allissues mediation.15 The Law Society of Scotland (LSS) was supportive of the development and introduced a scheme to accredit lawyers as family law mediators. In December 1993 the first family law mediator was accredited by the LSS. Comprehensive Accredited Lawyer Mediators Scotland (CALM) was formed in 1993 and formally launched in 1994. Nearly all solicitor mediators in Scotland are trained by and members of CALM. Encouraged by the increased emphasis on the importance of children’s views in the 1995 Act, RS (as FMS) developed its family mediation service to give children and young people the opportunity to directly express their views on the issues that their parents were discussing, and for these views to be fed into the mediation process. They began to offer a service of direct consultation with children in mediation in 1998. Mediators are required to undertake additional training to carry out this work. All of the 80

The development of family mediation in Scotland 13 family mediation agencies that are members of the RS network offer this service. Although it has been an option since 1998, uptake is relatively low. This may be because around 70 per cent of the children of mediation clients with RS are under the age of eight years. There is also a cultural expectation that parents are best placed to know what their children are thinking and feeling, which had been fostered by the legislation which the 1995 Act replaced,16 and a resistance to the involvement of too many professionals. This attitude may be shifting with the broader policy direction around the voice of the child, recognising that children have a right to have their views heard and that there should be less ‘gatekeeping’ by parents. All RS family mediation is child focused and if children are consulted directly, then it could be described as child inclusive.  In some areas CALM and RS mediators have worked together over the years to co-mediate on parenting and financial issues, offering ‘all-issues mediation’ and bringing together expertise from both fields. This has logistical and organisational challenges and is certainly not the norm across Scotland, but is nonetheless a potential area for future development. The growth of family mediation in Scotland has stagnated in recent years, with around 3,000 clients attending mediation at RS.17 CALM and RS submitted a joint proposal to the Scottish government and the Scottish Legal Aid Board (SLAB) in late 2016 to bring about a step-change increase in the uptake of mediation. The proposal was for a pilot in four court areas through which parents or carers in contact cases would be invited to attend a family dispute resolution information meeting, to fully explore all different options available to them to resolve their differences prior to going through the court process. This proposal is awaiting further response and funding from the Scottish government and/or SLAB. In May 2018 the Scottish government initiated a consultation in advance of a review of Part 1 of the Children (Scotland) Act to create a Family Justice Modernisation Strategy.18 The consultation included whether the Scottish government should do more to encourage alternative dispute resolution (ADR) and in particular whether information sessions should be introduced along the lines of mediation information assessment meetings in England and Wales. In 2015 RS was awarded funding from the Scottish government to offer parent education/information sessions for separating parents, which have been shown to help parents to make effective use of mediation, solicitor negotiation and the court process. Similar to the Separated Parents Information Programme in England, Parenting Apart is a one-off threehour group session that mums and dads attend separately, to find out what their children need from them when they are living apart. RS  is increasingly being asked to mediate intergenerational issues – for example, between grandparents and parents, and with  step-parents. A  developing area of mediation is between young people and their 81

Family mediation: the Scottish perspective families as an early intervention in the prevention of homelessness, where relationship breakdown is often an issue. Meanwhile, mediation has been developing in other areas of life and work. The Scottish Mediation Network, known as SM, was set up to provide an umbrella organisation.19 SM has since then worked energetically to foster awareness of all areas of mediation. Both RS and CALM are partnership organisations with SM, and SM provides a route to registration and regulation for those mediators who are not accredited by RS or members of CALM.

The relationship between family mediation and the civil justice system Another paradox in the development of family mediation in Scotland is in the relationship between mediation and the civil justice system. Private ordering is accepted and supported. There is no deterrent to people using mediation. However, the corollary is that the use of mediation has not been given as clear a formal status within the civil justice system as elsewhere. In Scotland, the Court of Session in Edinburgh deals with civil cases which are complex or international, or which involve significant amounts of money. Most civil cases which must be litigated, including actions involving children and divorce actions, are dealt with in local courts, called sheriff courts. In 1996 the court rules were changed for the sheriff court, and now in both the sheriff court and the Court of Session the rules allow for a referral of parties to mediation in family cases.20 It is not common for such referrals to be made if one or both parties are resolute in their opposition to such a move. If one or both parties go to mediation and, for whatever reason, do not wish to continue in mediation, then matters do not go further. This was a positive step. In areas where the sheriffs were particularly supportive, it encouraged mediation being seen as a normal step in the process. The issue of whether the mediation process is confidential in the context of civil proceedings is one which had no clear answer until the Civil Evidence (Family Mediation) (Scotland) Act was passed in 1995, conferring such confidentiality with the appropriate exceptions.21 SAFCoS was energetic in lobbying for this Act. The final stages of the legislative process took place soon after CALM was formed. The original Bill was drawn against a background where mediation dealt only with child-related issues. Some adjustments were made to the terms of the Bill to accommodate financial mediation. Once the Act came into force, confidentiality was conferred on mediators accredited by organisations approved by the Lord President of the Court of Session. The only organisations approved thus far are RS and LSS. 82

The relationship between family mediation and the civil justice system The Act was another positive step, although the case of FJM  v GCM 22 dented the reassurance that the 1995 Act provided. The action was raised to seek the return of children to Australia in terms of the Hague Convention. Unexpectedly, the judge indicated that the confidentiality of the 1995 Act was not intended to cover cases involving international abduction. Part of the consultation by the Scottish government is seeking views on whether the protection of confidentiality should extend to mediation in cases of international abduction. The Civil Courts Review in Scotland under the Lord Justice Clark, the Rt Hon Lord Gill, which reported in 2009 triggered significant changes in the structure of courts and procedure, but did not integrate mediation any more fully in family cases.23 However, in May 2019 a consultation was initiated by Margaret Mitchell MSP about the possibility of a Scottish Mediation Bill.24 There was sufficient support for Margaret Mitchell’s consultation to secure her the right to introduce a Member’s Bill giving effect to the proposal by 1 June 2020 (or, exceptionally, until 30 September 2020). In June 2019 SM issued an expert report entitled ‘Bringing Mediation into the Mainstream in Civil Justice in Scotland’.25 For the moment, public funding for mediation is restricted. The Scottish government funds the RS  National Office and network of 21 member services to provide relationship counselling, family mediation and child contact centre services. The funding provides about 40 per cent of the total network income. The balance is made up from charitable trusts, local authority funding, client donations and charges for some service provision. A further element which seems positive is that legal aid remains available in Scotland for family cases on a means-tested basis. The reforms to legal aid in Scotland actually made legal aid available, with a contribution, to higher earners. The reforms made no significant increases in payment for lawyers or LSS mediators. Legal aid can be granted for eligible clients to cover mediation, on the application of the lawyers representing the parties. SLAB now expects information on attempts to resolve matters by agreement and the use of mediation before legal aid will be granted in the first place, unless there is an issue of abuse or coercive control. However, there is currently no absolute requirement for parties to attend a meeting with an independent person to consider other forms of dispute resolution either before applying for legal aid or before raising court proceedings. In September 2013 the LSS introduced guidance making it necessary for lawyers to inform and advise their clients on the various forms of dispute resolution, to ‘enable the client to make an informed decision as to the course of action and procedure he or she should pursue to best meet their needs and objectives’.26 While these various steps have given a degree of recognition to mediation in the civil justice system by accommodating referrals to mediation, 83

Family mediation: the Scottish perspective conferring confidentiality, providing some funding and reinforcing the importance of informing clients, they are a patchwork rather than a bridge, and have not yet provided a perception of mediation in family cases being recognised as a core option. Research by Glasgow University into the use of separation agreements revealed that: ‘Interviews with parties revealed that it is often purely by chance that they find themselves (or their estranged spouse) being advised by someone who engages in these alternative methods).’27

The evolution of family mediation in Scotland with regard to practice, training and procedure One of the seductive aspects of mediation, from a mediator’s point of view, is that the core ethics, skills and standards can be discussed and shared within a worldwide community. The ethos of mediation has fostered a rich dialogue within that community. At the same time, there are national distinctions. A shared theme in the development of family mediation in Scotland has been a move by RS and CALM from taking only the most basic information prior to a first joint session to having fuller individual sessions with potential mediation clients. Individual sessions provide the chance for more in-depth screening for suitability and also acknowledge the need for a more gradual entry into, and preparation for the demands (and rewards) of, joint sessions. The RS family mediation service routinely offers both clients separate individual ‘intake’ appointments, to enable clients to make an informed decision about whether to progress to joint sessions. These one-to-one sessions generally last about an hour and are an opportunity to screen for and assess risks across a wide range of factors, discuss additional safeguards and signpost to specialist or alternative services as appropriate. These individual sessions are a vital first step and are increasingly being used again later in the process as a preparation for joint sessions or to overcome impasses. In Scotland, the two original strands of FMS (now RS) and family lawyers accredited by the LSS have remained separate. Lawyer mediators are accredited and regulated by the LSS, whose Code of Practice and Statement of Principles for Family Mediators applies. CALM provides core training and ongoing training which will provide an acceptable standard for the LSS. The LSS can accredit a family lawyer trained to a sufficient standard elsewhere. The RS National Office and the LSS, as organisations, must reapply for approval by the Lord President to accredit mediators for the purposes of the Civil Evidence (Family Mediation) Scotland Act 1995 every three years. The application covers selection procedures, initial training and assessment processes, continuing professional development (CPD), 84

Practice, training and procedure supervision and ongoing practice requirements. Accrediting bodies are required to evidence procedures for the monitoring of mediators against standards and for the removal of mediators from their register if necessary, as well as to report annually to the Office of the Lord President of the Court of Session for Scotland. There is an ongoing dialogue involving RS, CALM, SM and LSS to explore the possibility of a generic Code of Practice which could apply to all forms of mediation in Scotland. Each organisation has Codes of Practice covering the core elements, including the definition of ‘mediation’ as a voluntary, confidential process with an impartial third party, the need to avoid conflicts of interest, an obligation to undertake satisfactory CPD and maintain satisfactory professional and ethical standards, and complaints procedures, as well as varying additional elements in the various Codes. There has been cooperation and discussion between RS and CALM in respect of shared issues, including some shared update training. There are important common elements as well as significant distinctions between the training and practice of an RS mediator and an accredited family law mediator. RS training of family mediators has developed significantly over the years. The training is now undertaken in two stages and has professional validation from the College of Mediators and academic credit rating with Edinburgh Napier University at Scottish Credit and Qualifications Framework Level 9. A key aspect of both stages of the course is the need for participants to demonstrate their ability to integrate theory/knowledge, practice and reflection through a range of assessments. Independent oversight of the training and the involvement of an external examiner have delivered more robust evaluation and assessment. The regular reviews have encouraged a number of innovations towards delivering excellence in mediation training.28 The first stage, the Certificate in Family Mediation (Accredited) (CFM(A)), aims to equip participants with the knowledge, understanding and practice skills required to be a competent family mediator and to achieve Accredited Mediator status. The second stage of the training, the Certificate in Family Mediation (Registered) (CFM(R)), builds upon the learning from the CFM(A) and integrates learning from practice with further academic study and specialist training on a range of topics, including advanced skills and alternative models and theories. The CFM(A) involves approximately 250 hours of student learning and includes distance learning, facilitated learning (nine training days) and service-based practice learning. The course includes input on the mediation process, practice and underlying theories such as power and conflict; the impact of separation and the needs of children and families; 85

Family mediation: the Scottish perspective risk management in family mediation (child protection and domestic abuse); the legal context of family mediation; equality and diversity issues in mediation; and reflective practice. Written assessments include learning activities and an integrated case study. Observed assessments include mediation skills practice and mentored co-mediation practice (minimum of ten hours). Supervision is an essential element. The course takes about 18 months to complete. The CFM(R) also involves approximately 250 hours of student learning and includes self-directed reading, participation in CPD training, a minimum of 30 hours of mediation practice, supervision and observation of mediation practice. The final assessment is the submission of an integrated case study and a supervisor’s evaluation report, and a Registration Panel meeting. This course takes about two years to complete. RS trains its family mediators in an emotionally informed facilitative model of mediation with a focus on children and parenting issues. Family mediators who have trained elsewhere can apply to work in the RS network. Their course and subsequent practice are benchmarked through an accreditation of prior learning and experience process and training needs are identified. There has been an increase in applications in recent years from family mediators trained in England, Canada and Australia. RS training for mediators to hear the views of children and young people directly is undertaken after the CFM(R).29 The course on consulting children in mediation aims to equip experienced mediators with the practice skills, knowledge and understanding required to be competent to work directly with children and young people within the family mediation process. It incorporates distance learning, facilitated learning on a twoday training course and service-based practice learning, and requires approximately 22 hours of learning. CALM training was initially provided in two sections of three consecutive days each on a residential basis. Since 2010, the training has been provided as part of a portfolio of training which comprises a number of one-day (six-hour) and half-day (four-hour) modules covering skills and knowledge relevant for mediation, which must all be undertaken to be able to complete the specific mediation training (involving three consecutive full days). All of the modules involve a large component of interactive learning in roleplay. Prior reading and preparation are required for every element of the training. The modules and the mediation training are usually undertaken over one year, but must be completed within a period of three years. Participants prepare a reflective journal after each module. ‘Theory and Practice of Negotiation’ is a one-day module covering common negotiation theories with a focus on interest-based negotiation, Skills relevant for mediation – including acknowledging and clarifying, summarising, mutualising, understanding the impact of different 86

Practice, training and procedure question forms and reframing – are identified and practised. ‘Adult Dynamics and Reaction to Loss’ is a half-day module involving input from psychotherapists on the impact of stress and loss and making sense of adult relationships. ‘Advanced Negotiation’ is a one-day module covering personal conflict styles, how these preferences impact on performance in negotiations and mediations, self-serving biases and impasse strategies. On the ‘Child Development’ half-day, child psychologists provide an overview of children’s development and attachment theory. ‘Children’s Reaction to Separation’ is another half-day module involving research into children’s reactions to separation and the roles that children play, delivered by a mediator experienced in working with children. The specific mediation training takes place over three days on a nonresidential basis. On the first day, the aim is to introduce the process of family mediation, highlighting the distinct role and use of skills of the mediator. The learning objectives are to develop the ability to set aside subjective views and values when mediating; to understand the principles, structure and stages of the mediation process; and to review the key mediation skills introduced and practised in previous modules, including engaging, acknowledging, clarifying, summarising, mutualising, reframing and exploring options. The second day addresses financial and property issues in mediation and aims to develop skills for managing common challenges and dilemmas, including appropriate screening in respect of domestic abuse. The learning objectives are to develop the ability to help parties to handle their differences about finances in the mediation process; to increase awareness of how power manifests itself; and to practise the skills of alertness to the possibility of abuse, gap narrowing, developing options and dealing effectively with the unexpected in mediation. The third day covers the art of mediation in writing, the practical issues of mediation practice and completion of assessment of participants’ mediation skills. The learning objectives are to highlight the ethical, statutory and regulatory frameworks in which CALM mediators work; to outline the means of starting and marketing a family mediation practice; and to practise presenting clear and accurate information in writing while using mediation skills. The thinking behind this modular approach to the training is that each component builds relevant understanding and skills which can be practised over a period of time prior to the mediation training. They foster insight and self-reflection. The core training is currently child focused, not child inclusive, though some solicitor mediators have trained in childinclusive mediation. The core training includes the issue of screening and emphasises the need to continue to monitor and be alert for coercive control and abuse. Most of the solicitors who train as mediators have had experience in their 87

Family mediation: the Scottish perspective practice of family law of securing protective remedies for clients. All of the solicitors who train are experienced family lawyers. The skills needed for a mediator to make legal information available within the mediation process without providing legal advice are addressed. A detailed skills assessment is issued only after completion of the modules and production of reflective journals, the required reading and the three-day training course, followed by production of written summaries. Provided that the skills assessment is satisfactory, the solicitor can apply to the LSS for accreditation. Satisfactory references must also be provided along with the application. CALM provides follow-on training three times a year covering a diverse range of topics, including awareness of risk assessment in relation to domestic abuse and coercive control to reinforce and build on that aspect of the core training. It is not a requirement that solicitors train with CALM. Any solicitor applying for accreditation is required to demonstrate to the LSS suitable training and relevant experience, and to provide a report about his or her mediation skills from a mediation trainer who has observed him or her in roleplays during a foundation mediation training course lasting more than 30 hours. Once a solicitor mediator has been accredited by the LSS, the accreditation must be renewed every three years. To be eligible for re-accreditation, the solicitor must undertake no fewer than 15 hours of CPD every year, comprising a minimum of six hours of mediation training and a minimum of five hours of family law training, of which two must be on financial provisions; undergo one peer review in co-mediation per year (which may include roleplay); and provide an assessment of competence by an approved assessor, along with references and a satisfactory assessment of skills provided.30 Solicitor mediators are subject to the same discipline and regulation in their mediation practice as in their advising practice. RS mediators must meet the practice standards of undertaking a minimum of 15 practice hours per year; working to the RS  Code of Professional Conduct for Family Mediators; and abiding by all relevant RS and member service policies and procedures. Registered mediators must evidence that they have attained a minimum of 12 CPD points each year. A minimum of six points must be Category A, undertaken with an approved provider (eg, the RS  National Office or through the member service CPD approval process). The remaining six points may be Category A  or Category B  (undertaken in a variety of ways, including research, teaching and writing articles). Mediators must maintain a minimum level of supervision per year. For accredited mediators, this minimum is four hours per year or 10 per cent of mediation practice hours, whichever is the greater, subject to a maximum of 12 88

Conclusion hours. For registered mediators this minimum is two hours per year or 5 per cent of mediation practice hours, whichever is the greater, subject to a maximum of 12 hours. Registered mediators must complete an RS renewal form annually, and both mediators and supervisors must sign this form to confirm that the information provided is correct. The Scottish Mediation Register maintained by SM is an independent register of mediators who meet standards of quality. In order to join the register, family mediators working in the context of separation and divorce must meet the current practice standards set by either RS or the LSS. Mediators who are on the SMR can call themselves a Scottish Mediation Registered Mediator. To remain SM registered, mediators must undertake the required CPD and hours of mediation, maintaining a portfolio including those details and an annual training and development plan. SM registered mediators are recognised by SLAB for the purposes of legal aid. The numbers of mediators and people using mediation in Scotland are not really large enough to have family mediators who specialise in one particular approach to mediation; nor indeed is there enough knowledge among the public to select from such different approaches. This has resulted in the development of what could be termed responsive or integrative mediation. A basis in facilitative mediation, effective for tackling practical planning and identifying shared interests and needs, is infused with a parallel emphasis on acknowledgement and empathy, which fosters mutual understanding, insights and changes in attitudes – particularly helpful for parents. Mediators will draw on the different approaches to arrive at a bespoke blend of skills and strategies to match the particular couple.

Conclusion To come full circle, the fact that Scotland is a small community has both helped and hindered the development of mediation. Although recognition of mediation as an acceptable form of dispute resolution is gradually gaining momentum, it has not yet been endorsed by the civil justice system to the same extent as in the rest of the UK or in Ireland. It tends to be seen within the legal structure as a resource when negotiation or litigation is found not to work, rather than as a process of early intervention to enable separation to be a transition, not a fight. The protection of the law as a buffer from violence, bullying or dishonesty remains of fundamental importance. It is also crucial that families with the capacity to cooperate are supported in this approach. The challenge is to ensure the right ‘fit’ of dispute resolution to accommodate that increasing complexity. More momentum is needed from lawmakers and the legal 89

Family mediation: the Scottish perspective establishment to achieve the transition from the ‘A’ in ‘ADR’ labelling mediation as an alternative to a ‘default’ of litigation and instead recognise mediation as one of a range of appropriate dispute resolution options, which also includes litigation. Mediation is challenging and important work. It is entirely appropriate that mediators are expected to maintain a high standard. The public funding in place for RS, direct and through legal aid, is much appreciated, but is not enough to provide mediators themselves with a financial return for the work they do to balance the commitment and time spent. Mediators are generally motivated by a desire to help families rather than by commercial reasons. However, the degree of professionalism required suggests that relying on this motivation to ensure the availability of mediation risks a degree of exploitation of the mediators involved. The community of mediators is cooperative and working hard to ensure that families who could benefit from the mediation process are aware of its existence and understand the power it has to allow separation to be navigated constructively.31

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Endnotes

Endnotes  1 www.journalonline.co.uk/Magazine/59-11/1014669.aspx#.XG0-06L7TIU; accessed online on 5 August 2019. Dr Enid Mordaunt (trend to private ordering).   2 http://familylawassociation.org/about-the-fla.aspx; accessed online on 5 August 2019.   3 www.resolution.org.uk/; accessed online on 5 August 2019.  4 www2.gov.scot/Publications/2000/07/824a74d9-d359-48e4-85a7-24c00aaba241; accessed online on 5 November 2019.   5 The Children (Scotland) Act 1995 Part 1 s 11.   6 Birnbaum, R (2009) The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review; accessed online at www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/vcsdm-pvem/pdf/vcsdm-pvem.pdf on 5 August 2019 (EP or G v GG , 2016).   7 Family Law (Scotland) Act 2006 ss 28 and 29.   8 2006 Act cases – Gow v Grant [2012] UKSC29; 2013 SC (UKSC) 1:M v S [2017] CSOH 151 Recent 1985 Act cases – EP or G v GG 2016 Fam LR 30; (JA v WA , 2017) Pension case (McDonald v McDonald [2017] , 2017).   9 Judiciary in Scotland, 2017. 10 (Matrimonial Homes (Family Protection)(Scotland)Act 1981, 1981): The Domestic Abuse (Scotland) Act 2018. 11 The Civil Partnership Act 2004. 12 Family Law (Scotland) Act 2006 ss 23, 28 and 29. 13 www.ted.com/talks/nicola_sturgeon_why_governments_should_prioritize-well_ being?utm accessed online on 4 August 2019. 14 Collaborative practice (CP) is a dispute resolution process in which professionals from a legal, counselling and financial background, trained in CP, work together as a team to support separating couples make the transition as sustainably for the family as possible. There is an agreed structure to integrate the various elements and all planning discussions are at roundtable meetings with the parties present and contributing. All parties involved agree at the outset that if matters are not resolved using CP, the professionals will not be involved in any subsequent litigation. 15 Lisa Parkinson, mediator, trainer and consultant, co-founder and the first Director and now a Vice-President of the Family Mediators Association in England and Wales, was influential in the development of mediation in the UK. She was one of the early catalysts in Scotland by providing talks, information and insight. 16 Law Reform (Parent and Child) (Scotland) Act 1986. 17 Relationships Scotland. (2019). Relationships Scotland Annual Statistics 2018–19; accessed online at www.relationships-scotland.org.uk/about-us on 5 November 2019. 18 https://consult.gov.scot/family-law/children-scotland-act/; accessed online on 5 August 2019. 19 Ewan Malcolm, now CEO of Relate London North West and Hertfordshire and also Director of Training for CALM, was formerly a practising solicitor in Scotland who trained in family and commercial mediation. He was then Director of SM, which initiated a Register of Mediators. 20 Sheriff Court Ordinary Cause Rules 33.22: Court of Session Rule 49.23. 21 Civil Evidence (Family Mediation) (Scotland) Act 1995 ss 1 and 2. 22 FJM v GCM [2015] CSOH 130. 23 The Report of the Scottish Civil Courts Review 2009 (Edinburgh: Crown Copyright). 24 www.parliament.scot/gettinginvolved/111864.aspx; accessed online on 5 August 2019. 25 www.scottishmediation.org.uk/wp-content/uploads/2019/06/Bringing-Mediation-intothe-Mainstream-in-Civl-Justice-in-Scotland.pdf; accessed online on 5 August 2019. 26 Law Society of Scotland, Guidance B1.9: Dispute resolution, relating to Rules B1.4 the Interests of the Client & B1.9: Effective Communication. 27 Mair, J, Wasoff, F and Mackay, K (2013) All Settled? A study of legally binding separation agreements and private ordering in Scotland: final report, p 83; accessed online at http:// eprints.gla.ac.uk/85810/ on 5 August 2019. 28 www.relationships-scotland.org.uk/about-us/training-and-cpd/train-as-a-family-mediator; accessed online on 5 August 2019.

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Family mediation: the Scottish perspective 29 Garwood, F (1990) ‘Children in Conciliation: The experience of involving children in conciliation’, Family and Conciliation Court’s Review, 28(1): 43-52 records Fiona Garwood’s pioneering research on the voice of the child in family mediation in Scotland. 30 Law Society of Scotland, www.lawscot.org.uk/members/career-growth/specialisms/ accredited-mediators/ accessed online on 4 November 2019. 31 Many thanks to the people who have been kind enough to contribute time to this chapter – all views unless stated otherwise and, of course, any mistakes are my own. Thanks are due to Rosanne Cubitt, Relationships Scotland; Elaine MacGlone and Val McEwen, Law Society of Scotland; Scott Docherty, CALM; and Graham Boyack, Scottish Mediation.

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References

References Birnbaum, R, (2009) The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution: A  Literature Review (Canada: Department of Justice). Checkland, S  and C  O  (1984) Industry and Ethose: Scotland 1832–1914 (London: Edward Arnold). Children (Scotland) Act 1995 (The National Archives); accessed online at www.legislation.gov.uk/ukpga/1995/36/contents on 12 November 2019. Civil Courts Review (2009) Report of the Scottish Civil Courts Review 2009 (Edinburgh: Crown Copyright). Civil Evidence (Family Mediation)(Scotland) Act 1995 (1995 c 6) UK Public General Acts. Civil Partnership Act 2004 (2004 c 33) UK Public General Acts. Craig, C (2011) The Scots’ Crisis of Confidence 2nd ed (Glendaruel: Argyll Publishing). EP or G v GG (2016) FamLR 30. Family Law (Scotland) Act (nd). Family Law Scotland Act 2006 (The National Archives). FJM v GCM (2015) CSOH 130. Garwood, F (1990) ‘Children in Conciliation: The Experience of Involving Children in Conciliation’, Family and Conciliation Courts Review, Vol 28 Issue 1 43–51 Gow v Grant (2012) UKSC29. JA v WA (2017) CSOH 93. Judiciary in Scotland (2017) Documents/DiversityStatsScotland. Accessed online at www.scotland-judiciary.org.uk/Upload/Documents/ DiversityStatsScotlandSept2017.pdf on 5 August 2019. Law Reform (Parent and Child) (Scotland) Act 1986 (1986)  UK  Public General Acts c 9. Law Society of Scotand (2019) B1.9 Dispute Resolution. Accessed online at www.lawscot.org.uk/members/rules-and-guidance/rulesand-guidance/section-b/rule-b1/guidance/b1-9-dispute-resolution/ on 12 November 2019.

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Family mediation: the Scottish perspective Law Society of Scotland (2019) Accredited Mediators. Accessed online at www.lawscot.org.uk/members/career-growth/specialisms/accreditedmediators/ on 12 November 2019. M v S (2017) CSOH 151. Mair, J, Wasoff, F and Mackay, K  (2013)  All Settled? A  study of legally binding separation agreements and private ordering in Scotland (Glasgow: University of Glasgow). Mair, J, Wasoff, F and Mackay, K (2013) All Settled? A study of legally binding separation agreements and private ordering in Scotland: Final Report. Accessed online at http://eprints.gla.ac.uk/85810/ on 5 August 2019. Matrimonial Homes (Family Protection)(Scotland) Act 1981 (1981) UK Public General Acts c 59. McDonald v McDonald [2017] UKSC 52. Mitchell, A  (1985) Children in The Middle: Living Through Divorce (London: Tavistock). Mordaunt, E  (2014) Standing the Test of Time (Edinburgh: The Law Society of Scotland). Myers F, WF  (2000) Meeting in the Middle: A  Study of Solicitors’ and Mediators’ Divorce Practice (Edinburgh: Scottish Executive Central Research Unit). Parkinson, L (2014) Family Mediation, 3rd ed (Bristol: Jordan). Relationships Scotland (2019) Relationships Scotland Annual Statistics 2018–19. Accessed online at www.relationships-scotland.org.uk/about-us on 11 November 2019. Relationships Scotland (2019) Train as a Family Mediator. Accessed online at www.relationships-scotland.org.uk/about-us/training-and-cpd/ train-as-a-family-mediator on 5 August 2019. Scottish Courts and Tribunals (2019) Court of Session Rules. Accessed online at www.scotcourts.gov.uk/rules-and-practice/rules-of-court/courtof-session-rules on 12 November 2019. Scottish Courts and Tribunals (1993) Ordinary Cause Rules. Accessed online at www.scotcourts.gov.uk/rules-and-practice/rules-ofcourt/sheriff-court---civil-procedure-rules/ordinary-cause-rules on 12 November 2019. Scottish Government (2019) Proposed Mediation (Scotland) Bill. Accessed online at www.parliament.scot/gettinginvolved/111864.aspx on 5 August 2019.

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References Scottish Government (2018) Review of Part 1 of the Children (Scotland) Act 1995 & Creation of a Family Justice Modernisation Strategy. Accessed online at https://consult.gov.scot/family-law/children-scotland-act on 5 August 2019. Scottish Mediation (2019) Bringing Mediation into the Mainstream in Civil Justice in Scotland (Edinburgh: Scottish Mediation). Scottish Mediation (2019). Bringing Mediation into the Mainstream. Accessed online at www.scottishmediation.org.uk/wp-content/ uploads/2019/06/Bringing-Mediation-into-the-Mainstream-in-CivlJustice-in-Scotland.pdf on 5 August 2019. Sturgeon, N  (2019) Ted Talks: Why Governments Should… Accessed online at www.ted.com/talks/nicola_sturgeon_why_governments_ should_prioritize_well_being?utm_ on 4 August 2019.

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Chapter 6

Ethics and the family mediation process Lisa Webley

Introduction Family mediation has increased in prominence in many countries since the 1960s – sometimes as an independent and alternative form of dispute resolution to lawyer and/or court processes; sometimes ancillary to the family justice system; and sometimes as a recognised component of it. In England and Wales, family mediation has been prioritised as a better alternative to state-funded inter partes solicitor-led negotiation, with the fall-back of judicial adjudication. In a time of austerity and reduced state spending, funding for family mediation was retained and mediation became the gateway to the family justice system for those in need of state assistance (absent certain exempting factors);1 legal aid for solicitor assistance was substantially reduced.2 Families may and do choose to pay privately to access family mediation as either ancillary to or entirely distinct from any recourse to law. Family mediation’s relationship with law and the formal legal system is thus a complex one, in part due to successive governments’ policies and the role that lawyers sometimes play as family mediators as well as solicitors or barristers. Some of the ethical issues that arise in the context of family mediation reflect this complex relationship. These reforms have happened alongside both legislative and societal changes in understandings of the family and the balance to be struck between the interests of adults and children, particularly in contexts where families cannot initially agree on how family relations should be ordered. The state has increasingly sought to give legal force to the paramountcy of the welfare of children,3 at the same time as moving closer to a model of private ordering of family matters over adjudication through the courts. This has led to contested terrain as between adults, who are encouraged privately to negotiate outcomes for their families (including their children) within a justice system that expects children’s voices not only to be heard, but also to be given due weight in decisions affecting them. Children’s interests are interpreted as distinct from the interests of either parent and are to be placed as paramount in any hierarchy of consideration. On the one hand, judges are being required to scrutinise all decisions involving children to determine whether their welfare is being properly served; on the other, agreements are increasingly made away

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Ethics and the family mediation process from public scrutiny and the opportunity for a third party to assess them against the welfare principle. This potentially places family mediators in an ethically challenging position, as discussed below. When ethics are invoked, it is difficult to be sure whether the commentator is referencing general or specific moral principles, professional conduct or practical issues relating to the process of mediation, the outcomes achieved, the role of the family mediator or the way in which mediation is often used in England and Wales, and in legally aided cases in particular. In this chapter I shall explore ethics and the mediation process in three ways: first, ethics in the context of the underpinning ideologies of dispute resolution as a means to consider the fundamental values of family mediation; second, professional ethics in the sense of the process duties owed to those articulated as being professionally affected by a family mediator’s practice, such as the duty of neutrality in the context of the content of the outcome(s) and/or impartiality as between the clients; and third, by interrogating ethical dimensions in the context of outcomes achieved for families, the challenges between private norms and statearticulated ones (eg, the paramount importance of the welfare of the child), and how these may operate in the context of vulnerable adults and children. In doing so, I hope to highlight issues for further reflection rather than providing firm answers to ethical conundrums that arise in professional practice. All professional practice contains ethical tensions and reflection on those tensions is often a route to even better practice.

The ethical underpinnings of family mediation Family mediation is subject to a plethora of very similar definitions, most of which highlight the fundamental components as being a process facilitated by a neutral and/or impartial third party; a voluntary, flexible and confidential process, through which the parties can negotiate a consensual settlement to meet their needs (Boulle and Nesic 2001; Folberg and Taylor 1984; Davis and Roberts 1998; Mackie 1991; Bartsch 1999). Some definitions go beyond process explanations to include an underpinning theoretical framework, which often recognises the mutual respect of the parties’ views as integral to the process, and/or that the process is designed to provide those involved to develop their abilities to negotiate and to view disagreement differently and more positively (Richards 1997; Foster and Kelly 1996). Others approach mediation through the lens of a range of tasks and/or roles – some more facilitative, others more directional as regards mediator involvement in evaluating potential outcomes (Roberts 1988: 144; Gulliver 1977: 26–31). However defined, family mediation involves one or more mediators facilitating, directing and/or evaluating negotiations between two or more others either together or separately, with third parties present or not, to give them the best possible opportunity to reach a mutually acceptable outcome on some or all of their issues. The way in which this is undertaken may vary considerably between mediators, but also between mediations, given the nature of the personalities, contexts 98

The ethical underpinnings of family mediation and issues. Within the various different definitions, the underpinning ethical concepts and values have much in common with the ideology of mutualism. In this section we shall consider mutualism and its importance in family mediation practice; in subsequent sections we shall consider how different principles may diverge. Negotiations adhering to the theoretical framework of mutualism are undertaken in the spirit of private ordering, recognition of multiple viewpoints and mutual respect,4 rather than on the basis of partisanship,5 individualism or adversarialism (Lewis 2000: 6–7). Mutualism is sometimes referred to as consensus-driven negotiation and/or decision making. It is most usually associated with peace studies (Barak 2005) and certain branches of therapeutic psychology. It has also been harnessed in international dispute settlement. It has strong links with the ethic of care and with some forms of feminism (Cockburn 2005: 73). At its core, it prizes the active cooperation of all involved in the dispute or contested issues, recognising different viewpoints from a position of mutual respect and tolerance. It considers that the process, usually conducted in private, holds the possibility of growth both in understanding and acceptance, and in terms of the skills of those involved to continue in respectful dialogue and negotiation (Barak 2005). Mutualism focuses on process with the aim of securing an informed, durable outcome that is acceptable to all involved in and affected by the contested issues, according to the norms that those involved consider to be crucial to the issues that arise. It recognises that agreements cannot always be reached and that negotiations sometimes break down (Cockburn 2005: 78). In short, mutualism is a natural fit for family mediation, with many of the fundamental precepts of the two being entirely aligned. It is often easier to see the importance of the values that underpin practice in contrast to those that underpin the practice of other professionals. Although adversarialism is often used as the analogue to family mediation, given that it is the underpinning ideology associated with solicitor-led family disputes, it is perhaps more accurate to refer to the underlying ethic of solicitor-led negotiations as one of partisanship. In an English and Welsh context, this assumes a reasonable similarity of knowledge and resources as between the legal representatives working for each party (equality of arms); the legal representatives pursuing their client’s aims vigorously but ethically according to their codes of conduct; full disclosure of all relevant information so that the basis for the outcome is known and the final decision is fully informed; and the starting point being to negotiate a settlement that would conform to one that a judge would be willing to reach and/or sign off in a consent order, with the backstop of judicial adjudication if the parties are unable to agree between themselves. The norms to be used are legal ones – thus, external ones rather than ones mutually agreed upon; and the starting point is that the agreement will be quasi-public, in that it will be turned into an order by consent through a court process if not adjudicated by a judge. It is thus a process that is outcome orientated (Cockburn 2005), within a context of procedural fairness (otherwise, the agreement can be struck down on grounds 99

Ethics and the family mediation process of undue influence or the judicial determination can be successfully appealed), based on knowledge of the facts, the contested issues and the application of legal norms or clear reasons for departure from them.6 As legal norms in England and Wales require that the interests of the children be placed as paramount, that is the basis on which agreements should be reached. Further, as there are legal precepts in the context of welfare benefits and conventions used in the context of property division and pension splitting, these are also usually the starting point for negotiations in order to maximise client positions. This is not to say that all agreements will be reached on the same basis, but conventions are used as a starting point based on what might happen were the negotiations to break down and the case be determined by a judge. The outcome – the agreement or order – is the primary focus. Those solicitors who are accredited through family law recognition schemes are guided by outcomes for the family unit not just at the point of decision, but into the future, rather than purely outcomes for their client and the children (Webley 2004). Others may be less inclined to consider the family until in the round. Mutualism prizes the process of recognising and respecting difference of the wider unit (in this case the family), with the hope that an outcome may be reached that works for every member. The ethic of care extends to all affected by the dispute. Those negotiating are representatives for the wider unit, rather than individuals negotiating in their own interests. There is no requirement for a particular normative framework to be used or for there to be acceptance by all of the norms, as long as the negotiations can be effective, any outcome can be accepted by all, any truly fundamental values (eg, human rights; the autonomy of those affected but not involved in the negotiations) are respected, and the negotiators are aware of the consequences of their decisions for others affected as well as themselves (as far as consequences are foreseeable). Disclosure is necessary to allow for mutually respectful negotiations, although it is not a process value in itself; there is a desire for a durable outcome acceptable to all (not just the negotiators, but those affected by the outcomes), but a recognition that it may be necessary to walk away from the negotiations if this is not possible. Thus, the negotiations are the key, rather than the outcome; yet a good outcome is obviously to be sought in good faith. The facilitator or evaluator of those negotiations assists in good faith, with no stake in the outcome. These values mark out family mediation as a process and a practice. Given the close links between family mediation and mutualism, the delineation of these values assists when considering contexts where some of the precepts of family mediation may come into conflict in a practical sense, and provides a toolkit to work through how to address those tensions in the most ethically appropriate way.

Ethical conduct and professional practice Professions are defined as against a set of markers of professionalism, which include an element of self-regulation as against high standards 100

Ethical conduct and professional practice of practice; the existence of a professional governing body with powers to oversee members of the profession’s practice and to discipline those who fall below acceptable standards and/or breach a code of practice or ethics; members of the profession having a high level of expertise in a specialised field of knowledge, gained through defined education, training and experience (often including continuing professional development); and additional responsibility to clients beyond those established through contract and tort law (Royal Commission on Legal Services 1979). Ethical practice combines knowledge, skill and delivery, as well as care for the client(s) and sanction for those members who fall short. Ethical conduct rules have variously been argued to promote professional cohesion and socialisation (Abbot 1983: 83); to raise the status and standards of professionals and instil public trust (Chartered Institute of Arbitrators 2001) and provide legitimacy (Laster and Taylor 1994: 204; Abbot 1983: 83); to justify the profession’s autonomy; and to capture and retain exclusivity in a market (Abel 1981; Hutchinson 1998: 175; Laster and Taylor 1994: 204; Rhode 1981). Professionals convert their collegial standards and norms into professional ones, once they are embedded into a code and are set as benchmarks for practice (Mainman, McEwen and Mather 1998: 72). These serve as a public expression of the values of the profession as well as a means to drive good practice. Mediation is not a protected profession or reserved activity in the UK – at least not outside the state-funded sector. Anyone who wishes to practise as a mediator may advertise themselves as such and perform the role without the need to fulfil training, accreditation, supervision or code compliance, or to be subject to oversight, scrutiny or liability (beyond that which applies to the provision of any other service) (Webley 2010a, 2010b). That is not so dissimilar to much legal work in the UK, as only seven activities are reserved to those who meet the statutory requirement for legal practice (Webley 2010a, 2010b). The other markers of professionalism are largely met (Webley 2010); and for the purposes of this chapter, the focus is on the way in which professionals interpret their duties as set out in their professional codes, rather than concerns about whether members of the public are being served by those who refer to themselves as family mediators (or family lawyers) with insufficient training, experience and a lack of professional oversight (Webley 2015a; Trinder et al 2014). The assumption being made here is that the family mediators under discussion all adhere to a professional set of standards in keeping with those set by the UK College of Mediators. The main (although not sole) code of conduct for mediators in the UK is the College of Mediators’ Code of Practice, applied to all members and members of affiliated organisations, including those who undertake family mediation for those in receipt of legal aid. It is a comprehensive code that contains provisions addressing the key facets of all mediation practice. The provisions coincide with the core values of mutualism. The key principles are voluntary participation by clients; the neutrality, impartiality and independence of the mediator, free from conflicts of interest; respect 101

Ethics and the family mediation process of confidentiality; recognition of legal privilege and its operation in the context of legal proceedings; respect for children and young people in mediation and consideration of their interests by those who are negotiating in their stead; safeguards to ensure safe participation in the process of mediation; equality of opportunity; and mutual respect (College of Mediators 2019). But as with all codes, there are tensions between some of these principles and family mediators will need to balance competing duties with reference to core values (Hutchinson 1998: 183). To do this, professionals need well-developed skills of reflection and reflexivity, and a sensitivity to ethical issues such that their ethical antennae are raised and their reflexivity engaged. Codes have their limitations and tensions between principles do not necessarily lead to ethical development – they may simply lead to defensive practice (Hutchinson 1998: 183). Without training in ethical reasoning, it is difficult to develop the knowledge and skills required both to spot the need to reflect and to have the tools to do so effectively. Relatively little focus is placed on this in most forms of education, and training and collegiality, mentoring and supervision are often the perceived remedies for this.7 Family mediation practice is similar in this regard to many other professions. The next two sections will focus on process ethics that may come into conflict raising the potential for ethical challenge, and outcome-related or content ethics that may give rise to the need for similar reflection.

Process ethics: mediator neutrality and/or impartiality as process virtues Family mediation holds process ethics to be fundamental to the nature of its professional practice. Impartiality, neutrality and approaches tailored to those involved are all important and worthy principles, which must be given substance through family mediators’ approach to the negotiations. The way they undertake mediation, the choices they make about their approach and the way they draw out their clients will lead them to be more or less facilitative or evaluative (Haynes 1994), or more interventionist or therapeutic (Roberts 1988: 144). References to both facilitation and evaluation are contained within the College of Mediators’ Code of Practice. These different approaches to mediation have variously been described as the conceptualist approach (ideological and aspirational) and the descriptive approach (the day-to-day practice of mediation) (Boulle and Nesic 2001: 4–6; Roberts 1992); the ‘settlement-oriented approach’ linked to the ‘narrow’ approach; and the ‘transformative approach’ linked to the ‘transformative’ approach (Test Design Project 1995: 4–6; Honeyman 1993; Riskin 1996). The labels suggest binaries, but in truth an expert mediator will nuance his or her approach to family mediation depending on the circumstances. There is no obvious ethical dimension here, beyond the professional’s need to consider whether he or she has the expertise needed to assist the clients given their circumstances. And that is the same for all professionals in all contexts. 102

Process ethics: mediator neutrality and/or impartiality as process virtues Yet the approach adopted does give rise to the need for ethical reflection, as there is evidence to suggest that mediator approach has a direct effect on settlement (Pearson and Thoeness 1988: 212; Donohue, Drake and Roberto 1994), and further that mediators of all types may not, without substantial reflection, be able effectively to assess how interventionist they are being (Greatbatch and Dingwall 1988). There is also evidence that it may be difficult for them to evaluate how transparent they are being about their stance with their clients. One aspect of the art of negotiation is to evaluate and frame both sides’ options so as to steer them (appropriately) towards settlement if a settlement looks in sight.8 Yet as we are all products of our own biases – and professionals are no less prey to them than their clients – the need to keep under review the extent to which our biases are influencing our evaluations remains live. Neutrality about the nature of the outcome and its substance is a fundamental value set out in the Code; but this is hard (if it is possible at all) to achieve, unless it is acknowledged that mediators will have legitimate views about what they consider to be ‘better’ or ‘worse’ outcomes, that their biases will unconsciously pull them in the direction of their preferences, and that vigilance will be required at all times and course corrections will need to be constant. Unconscious bias training is becoming a more usual part of professional training in the context of equality and diversity syllabi, but is not as strong a component in most substantive elements of training and may need further development if professionals are to be better equipped to spot the influence of unconscious bias and take steps to mitigate it where it could be inappropriate. It is hard for them to do this in a context where neutrality is highly prized and deviance from it may be viewed as a failing rather than a natural part of the human condition. Impartiality is similarly difficult to achieve for all of us and again this needs to be acknowledged as a constant challenge. We warm to some people; we may be indifferent (or worse) to others. Our views on gender roles, appropriate behaviours and stances all make impartiality between people difficult, and society’s structural biases influence our stances (Grillo 1991). Our ability to spot and redress power imbalances is similarly affected by our views of appropriate roles and behaviours. Mediation recognises power balances as an important component in fair negotiations and family mediators are charged with the responsibility of either redressing unfair imbalances or, if this cannot be achieved, terminating the family mediation. The rationale for this is clear: there needs to be a reasonable prospect of equal bargaining so as to afford the best opportunity of a consensual, fair and durable settlement.9 Family mediators are trained in domestic violence protocols to assist in the identification of these forms of power imbalance and domestic violence protocols have become increasingly sophisticated over time, undercutting many of the criticisms levelled at early forms of family mediation (Hesterand Pearson 1997; Thoennes, Salem and Pearson 1995). Strategies to counteract power imbalances are essential, but 103

Ethics and the family mediation process they are also in tension with the requirement of impartiality (Ingelby 1988: 53). Impartiality suggests even-handedness; yet even-handedness does not redress imbalances of power. Mutualism requires all clients to respect each other’s viewpoints and yet the reality of many negotiations is that they do not. Intervention to counteract this may be perceived as partiality, but ethical partiality aimed at the greater good of the negotiations. If a mediator does not relax his or her impartiality as between the clients and allows a power imbalance to persist, the whole process may be unfair, as may any resulting outcome (Dingwall 1988; Greatbatch and Dingwall 1989; Taylor 1997; Mulcahy 2001; Astor 2007). The more vulnerable party may be overborne. This is true too for less visible power imbalances – the power that children and young people have to make their voices heard, be understood, accepted and prized above other considerations. There is mediation training for involving children in the process and some training to assist with considering the views of children in their absence. But hearing children’s voices through their parents is fraught with difficulty (although this also happens in solicitor negotiations), and requires much skill and thought. Parents may not be alive to the issues affecting their children such that they are not brought before the family mediator; careful and thoughtful questioning, which may lead to concerns about partiality, may be needed to ensure that children are at the centre of the negotiations. In sum, overt and covert power imbalances are always ethical decision points in which family mediators must make judgements about their levels of intervention. These should be recognised as moments of necessary partiality so as to give mediators and their clients the assurance they need that the values of mutualism, of family mediation, are being respected. A  mediator’s role here is a crucial but challenging one that requires a consciousness of his or her power to influence outcome as well as process, limiting intervention to that which is necessary and doing so strategically and reflexively. Most professions recognise and have protocols to address power imbalances between the professional and the client; but mediators have to address not only this, in multiple forms, but also the dynamics between those involved and those not immediately evident in the process (eg, children or other adults who may have vulnerabilities). The duties of impartiality as between the clients, neutrality as to the outcome and the need to counter power imbalances to allow for a fair process and the potential for an accepted fair outcome, alongside consideration of the rights of third parties not present, are so challenging that some indicate that an approach to practice that actively manages power relationships (through activist, transformative narrative mediation) (Harper 2006; McEwen 1993; Haynes 1994; Astor 2007; Field 2000; Douglas and Field 2006) may be needed. I have argued elsewhere that it may be necessary to move away from the terminology, if not the aspirations, of neutrality and impartiality in favour of active reflexivity more in keeping with that undertaken by those working in therapeutic traditions (Astor 2007; Wall, Stark and Standifer 2001).10 104

Normative frameworks as protections for the vulnerable

Normative frameworks as protections for the vulnerable: the family mediator’s role beyond process protections? Mutualism, in keeping with notions of autonomy and correlated with conceptions of private ordering, affords the parties to a negotiation the chance to draw upon their own normative frameworks to assess potential outcomes and to reach decisions. It is accepted that there are some fundamental concepts that may need to be respected, such as human rights norms and the needs of those beyond the negotiating circle; but otherwise the choice of ‘rules’ is up to the parties. Family mediation follows this tradition and, unlike family arbitration, does not impose a set of outside rules. Consequently, it is up to the parties to determine whether they wish to seek independent legal advice or involve a legal professional in the process (Webley 2015b). They may ask the family mediator for legal information, where they agree that would be helpful. But the agreement may be reached in ignorance of or contradiction to the law if the parties so choose, unless there are children or other vulnerable people involved. This is in keeping with the shift towards private ordering by the state, but does not fully adhere to the fundamental value of informed decision making in mutualism. The law is one set of norms that could be used, but not an exclusive or fundamental set. A family mediator in the UK adhering to the College of Mediators’ Code is required to ensure that the parents take into account the child’s welfare and consider the child as distinct from his or her interests – this is harder in practice than it appears on paper, but it is a laudable and important aim backed up by legislative requirement. This is not the usual stance that is taken in many countries; but in England and Wales, family mediators follow the Children Act 1989 and the Section 1 paramountcy principle as a fundamental value. Otherwise, the substantive framework is open and clients may be well informed in their decision making or may not. The open weave of the normative framework presents both opportunities and risks to those seeking to reach agreements. For those with a shared normative framework, mutual respect, an ability to compromise, similar levels of bargaining power and a reasonable standard of living, this may be a liberating process, leading to creative and thoughtful outcomes. The family mediator will not likely be placed in a tricky ethical position, as all elements of mutualism are present in this context. It is possible that the clients may have reached a different decision had they each sought independent legal advice; but with the benefit of some legal information, they may feel that they are sufficiently knowledgeable to be able to reach an informed decision and the opportunity costs of not having checked their legal entitlements may be low. They may not be concerned with being put in the most advantageous personal position as long as all members of the family feel that they have minimised the potential for bitterness or recriminations, and have met the needs of all as best as possible according to their framework. And as long as they do not need to fall back on the resources of the state, they will likely have experienced the best available 105

Ethics and the family mediation process means of separating, reaching agreement and developing their abilities to negotiate further in future. For those who are experiencing conflict, do not share a normative framework or hold one that is at odds with that of the state, and who are of modest financial means, there may be greater difficulty and more clear-cut ethical points to consider. Although policy makers and politicians have largely moved away from notions of family justice through legal protection, towards private responsibility through private ordering using personal norms (Webley 2015b), the state system has also stepped back from offering the same levels of state assistance to those with limited financial support. Relationship breakdown is one of the main causes implicated in financial distress and resultant forms of distress for families – whether that be because one household needs to become two with an associated increase in costs, because child support needs to be paid or because understandings for the future such as provision during retirement must be reworked. With the move from universalism to neoliberalism, the stakes have become higher for those of modest means: choices made during a family break-up lead to consequences being borne by the individuals and their children well into the future (Jessop 2003: 137). Welfare benefits are less readily available and families are expected to meet their own financial needs, whether as a unified unit or separated ones. There is limited state assistance to help; individuals must help themselves. In this context, legal protections may be needed to assist the more vulnerable client(s). Family mediators are thus charged with helping clients to reach the best possible agreements that they can, if they can, in a context where there is limited funding for clients to get independent legal advice. Public legal knowledge is low and the consequences that flow from their decisions similarly unknown to most. Family mediators cannot provide clients with legal advice; their role in providing legal information is important yet a thorny one, given that they cannot explain why the law may be of benefit to one client or another. To do this may offend against impartiality; but to leave a client in ignorance of how his or her position may be affected by a decision that could leave him or her – or a child – legally unprotected is not, I would argue, an act of ethical neutrality. In a world where family mediation was provided as a means to negotiate, and where outside expert advice could be sought freely and at cost that clients could afford, a family mediator would not be placed in this difficult ethical position. Unfortunately, the implementation of family mediation by the state has not lived up to the mutualist ideal. Is knowledge of legal norms really that important? Some continue to assert that it is essential that family settlements are legally compliant, whether negotiated without third-party help or decided by a mediator, an arbitration panel or solicitor representatives; otherwise, we risk structural and individual inequality going unchallenged.11 Some view the state’s unwillingness to fund people’s access to proper legal help as an abdication 106

Conclusions of responsibility by the state and an erosion of the principle of the rule of law.12 Some – a minority – consider that all settlement is contrary to law’s purpose (Fiss 1984: 1075–85).13 Others argue that a move away from traditional and conservative conceptions of the family embodied in law that remains gendered (O’Donovan 1993: 41), culturally homogenous,14 conservative and establishment focused is to be welcomed (Naffine 1990: 148). Finally, others argue that family law is so broad in many contexts that it is difficult to predict what is and is not likely to be an adjudicated outcome; and thus it is better for clients to reach agreements that they are content with, as long as they do not lead to negative consequences for the family down the line.15 Thus there are important differences of opinion on this point. Legal norms do, however, play an important role in the context of power imbalances within families. Structural power imbalances associated with the gendered roles that adults often play in households,16 the way in which child-rearing and money-earning responsibilities often fall and the way in which these play out in a neoliberal state may dictate not just norms, but also expectations and thus settlement objectives (Davis, Cretney and Collins 1994: ch  3). Recourse to legal norms does not eradicate those imbalances, but it may go some way towards addressing them.17 Private ordering without help from partisans places a lot of responsibility on family mediators, and it is understandable why the College of Mediators’ Code indicates that it may be important for mediators to reality test clients’ assumptions against legal frameworks. It may be necessary to insist that the parties take legal advice before finalising any agreement (Finlay 1993: 70–74; Roberts 1996). Yet the greater the legal input from family mediators, the further that mediation strays from its theoretical underpinning of mutualism and the closer it gets to collaborative law practice by legal representatives as constructive partisans without the protections that partisanship affords.

Conclusions This chapter has considered three major sites of ethical debate for family mediators – the underpinning values, process ethics and substantive protections – that go to the heart of family mediation practice. This is not to say that they are exclusive to family mediation – far from it; lawyers and judges must also grapple with process and substantive fairness issues – but they are less well treated in the literature in the context of mediation and arguably more difficult to interrogate. Family mediation has much to offer those who do not recognise their lives in the norms the state provides as laws (O’Donovan 1993; Naffine 1990), who do not need law’s protections or who choose to be assisted to bargain in the shadow of the law, knowing the consequences of their decisions (Mnookin and Kornhauser 1979). It allows for private concerns to be aired and resolved; for opportunities for personal and mutual acceptance, development and empowerment. In many instances, power balances will not be great – the 107

Ethics and the family mediation process clients will recognise them and counteract them without the need for mediator intervention. In others, they will be remediable by the mediator without much difficulty, noting that a degree of partiality may be required to observe neutrality. A competent, effective, reflexive mediator will steer negotiations through to a positive conclusion – whether a settlement or an agreement that settlement cannot be reached. Decisions will be informed; clients will be able to afford to seek legal advice if they need it. The wider family will be acknowledged and its interests protected through the process. Family mediation will live up to its mutualistic roots and will enhance equality and fairness; whether it delivers on legal justice or not will be secondary. Ethical challenges become more apparent in contexts where family mediation departs from its traditional entirely voluntary roots and becomes part of the formal family justice system, championed by the state to be delivered on budget instead of, rather than as well as, full legal help. Those clients who are financially challenged have most to lose if the choices they make do not serve them well; private ordering in the current context is coupled with personal responsibility for one’s decisions. Clients as decision makers are deemed to be cognisant of the consequences that flow from their decisions. However, welfare benefits provisions, property and housing law and pensions rules are complex, and without advice based on full disclosure, one can inadvertently fall victim to problems that will not be remedied or mitigated by state support. This is not a function of the mediation process, but rather the way in which it has been harnessed by the state. The provision for a lawyer briefly to check the mediation agreement without full disclosure of all pertinent facts is a nod to a basic form of protection for clients, but an inadequate one. This weighs heavily on family mediators – not just as regards ensuring a fair process, the traditional preserve of mediators, but also for ensuring that the basis for the outcome is fair for clients and their families. Concerns about unequal bargaining power and what that means for impartiality are one thing, but the underpinning norms for the decision are a new addition to mediators’ roles and are implicated with the principle of neutrality. Ultimately, ethical practice is founded on professionals’ reflexivity in the face of conflicting principles, individual contexts and their own biases. Family mediation is no different in this regard. Key principles of practice, such as those highlighted here – neutrality, impartiality, counterbalancing power imbalances, respecting and upholding the rights of children and young people – cannot always be respected equally in all circumstances. The values inherent in mutualism provide access to ways of thinking through these tensions, so that principles can be balanced to ethical effect. Professionals need nuanced training to help them to recognise the tensions, appreciate their ethical import, interrogate their own biases and apply their insights. This is central to ethical and reflexive practice and serves their clients, the wider family unit and society. 

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Endnotes

Endnotes 1 2 3 4

By virtue of the Children and Families Act 2014, s 10. Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) reforms. Section 1 of the Children Act 1989. Although there are contrary narratives – see Dingwall (1988); Greatbatch and Dingwall (1989); Dingwall and Greatbatch (1991); Mulcahy (2001). 5 Less so increasingly with the rise of self-represented litigants: see Moorhead and Sefton (2005); Trinder et al (2014). 6 Some criticise these values in a family law context, arguing that they are potentially destructive, hostile and insufficiently nuanced for a multicultural society. There are counterarguments presented too. They are not explored here, but for those who wish to consider them, see Davis (1988), 47–61; Ingelby (1988), 43–6; Maclean, Eekelaar, and Bastard (2015), 82–9, Webley (2010a), (2010b); Milne (1988), 27 cf Felstiner and Sarat (1998); Maclean and Eekelaar (2009); Eekelaar and Maclean (2013); Mulcahy (2006); Trinder et al (2014). 7 For a discussion of concerns that law students are taught to use ethical rules as they do legal rules, see Menkel-Meadow (1991). For a discussion of how to increase reflexivity and develop ethical professional practices, see Moliterno (1996), 68; see further Powles (1999) and Webb (1999). 8 See Mulcahy (2001) in a community rather than family mediation context. 9 For the range of factors, see Roberts (1996). 10 For evidence that this practice is already in use in another context, see further Mulcahy (2001). 11 For a discussion of family law’s purposes, see Eekelaar (2000) at 9. 12 For a discussion, see Genn (2012). 13 See further Twining (1993) on rational adjudication; see Finlay (1993), 63 for a contrary view. 14 On the importance of culture, see Shah-Kazemi (2000). 15 See, for example, O’Donovan’s  (1993) analysis of family law in this regard, chapter 2, 10–29. 16 See Slaughter (2000) at 44 on gender and mediation; see Oldersma and Davis (1991) at 12 on gender and power more generally. 17 Although note O’Donovan’s concerns as regards the gendered nature of law: chapter 2.

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References Abbot, A (1983) ‘Professional Ethics’, American Journal of Sociology, Vol 88 Issue 5 855–85. Abel, RL (1981) ‘Why Does the ABA promulgate Ethical Rules?’ Texas Law Review, Vol 59 639–88. Astor, H (2007) ‘Mediator Neutrality: Making Sense of Theory and Practice’, Social and Legal Studies, Vol 16 221–39. Barak, G (2005) ‘A Reciprocal Approach to Peacemaking Criminology: Between Adversarialism and Mutualism’, Theoretical Criminology, Vol 9 Issue 2 131–52. Bartsch, H-J (1999) Council of Europe-Legal Co-operation in 1998–9 (Council of Europe). Boulle, L and Nesic, M (2001) Mediation Principles Process Practice (London: Butterworths). Cockburn, T (2005) ‘Children and the Feminist Ethic of Care’, Childhood, Vol 12 Issue 1 71–89. Davis, G (1988) Partisans and Mediators: The Resolution of Divorce Disputes (Oxford: Clarendon Press). Davis, G, Cretney, SM and Collins, J (1994) Simple Quarrels: Negotiations and Adjudication in Divorce (New York: Oxford University Press). Davis G and Roberts, M (1998) Access to Agreement: A Consumer Study of Mediation in Family Disputes (Milton Keynes: Open University Press). Dingwall, R (1988) ‘Empowerment or Enforcement?’ in Dingwall, R and Eekelaar, J (eds) Divorce Mediation and the Legal Process (New York, Oxford: Oxford University Press). Dingwall, D and Greatbatch, R (1991) ‘Behind Closed Doors: A preliminary report on mediator client interaction in England’, Family Court Review, Vol 29 Issue 3 291–303. Donohue, WA, Drake, L and Roberto, AJ (1994) ‘Mediator Issue Intervention Strategies: A Replication and Some Conclusions’, Mediation Quarterly, Vol 11 261–74. Douglas, K and Field, R (2006) ‘Looking for Answers to Mediation’s Neutrality Dilemma in Therapeutic Jurisprudence’, ELaw Journal, Vol 13 Issue 2 177–210. 110

References Eekelaar, J (2000) ‘Chapter 2 Uncovering Social Obligations: Family Law and the Responsible Citizen’ in Maclean, M (ed) Making Law for Families (Oxford: Hart Publishing). Eekelaar J and Maclean, M (2013) Family Justice: the work of family judges in uncertain times (Oxford: Hart Publishing). Felstiner, WLF and Sarat, A (1998) ‘Chapter 2 – Negotiation between Lawyer and Client in an American Divorce’ in Dingwall, R and Eekelaar, J (eds) Divorce Mediation and the Legal Process (New York, Oxford: Oxford University Press). Fired, R (2002) ‘Neutrality and Power: Myths and Reality’, accessed online at www.mediate.com/articles/fieldR.cfm on 26 November 2019. Finlay,  HA (1993) ‘Family mediation and the Adversary Process’, Australian Journal of Family Law, Vol 7 63–83. Fiss, O (1984) ‘Against Settlement’, Yale Law Journal, Vol 93 Issue 6 1073–90. Folberg, J and Taylor, A (1984) Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation (San Francisco: Jossey-Bass). Foster, NJ and Kelly, JB (1996) ‘Divorce Mediators; Who Should Be Certified?’ University of San Francisco Law Review, Vol 30 665–76. Genn, H (2012) ‘What is Civil Justice For? Reform, ADR, and Access to Justice’, Yale Journal of Law and the Humanities, Vol 24 397–418. Greatbatch, D and Dingwall, R (1989) ‘Selective Facilitation Some Observations on a Strategy used by Divorce Mediators’, Law and Society Review, Vol 23 613–42. Grillo, T (1991) ‘The Mediation Alternative: Process Dangers for Women’, The Yale Law Journal, Vol 100 Issue 6 1545–1610. Gulliver, P (1977) ‘On Mediators’ in Hamnett, I (ed) Social Anthropology and Law (London: Academic Press) 26–31. Harper, C (2006) ‘Mediator as Peacemaker: The Case for Activist Transformative-Narrative Mediation’ Journal of Dispute Resolution, Vol 2006 Issue 2 595–612. Haynes, J (1994) The Fundamentals of Family Mediation (New York: Albany State University and New York Press). Hester, M and Pearson, C (1997) ‘Domestic Violence and Mediation Practices. A Summary of Recent Research Findings’, Family Mediation, Vol 7 Issue 1 10–11. 111

Ethics and the family mediation process Honeyman,  C (1993) ‘A Consensus on Mediators’ Qualifications’, Negotiation Journal, Vol 9 Issue 4 295–308. Hutchinson, AC (1998) ‘Legal Ethics for a Fragmented Society: Between Professional and Personal’, International Journal of the Legal Profession: Vol 5 Issues 2/3 175–92. Ingelby, R (1988) ‘Chapter 3 - The Solicitor as Intermediary’ in Dingwall, R and and Eekelaar, J (eds) Divorce Mediation and the Legal Process (New York, Oxford: Oxford University Press). Jessop, RB (2003) ‘From Thatcherism to New Labour: Neo-Liberalism, Workfarism, and Labour Market Regulation’ in Overbeek, H (ed) The Political Economy of European Employment: European Integration and the Transnationalization of the (Un)Employment Question (London: Routledge). Laster, K and Taylor, VL (1994) Interpreters and the Legal System (Sydney: Federation Press). Lewis, P (2000) Assumptions about Lawyers in Policy Statements: A Survey of Relevant Research No. 1/2000 (London: The Lord Chancellor’s Department). Mackie, K (1991) A Handbook on Dispute Resolution (London: Routledge); Maclean, M and Eekelaar, J (2009) Family Advocacy: How barristers help victims of family failure (Oxford: Hart Publishing). Maclean, M, Eekelaar J, Bastard B (eds) (2015) Delivering Family Justice in the 21st Century (Oxford: Hart Publishing). Maiman, RJ, McEwen, CA and Mather, L (1998) ‘The Future of Legal Professionalism in Practice’ Legal Ethics Vol 2 Issue 1 71–86. McEwen, C (1993) ‘Competence and Quality’, Negotiation Journal, Volume 9 Issue 4 317–20. Menkel-Meadow, C (1991) ‘Can a Law Teacher Avoid Teaching Legal Ethics?’ Journal of Legal Education, Vol 41 3–10. Milne, A (1988) ‘The Nature of Divorce Disputes’ in Folberg, J and Milne, A Divorce Mediation, Theory and Practice (New York: The Guildford Press). Moliterno, JE (1996) ‘One the Future of Integration between Skills and Ethics Teaching: Clinical Legal Education in the Year 2010’ Journal of Legal Education, Vol 46 Issue 1 67–78. Mnookin, RH and Kornhauser, L (1979) ‘Bargaining in the Shadow of the Law: The Case of Divorce’, Yale Law Journal, Vol 88 Issue 5 950–97. 112

References Moorhead, R and Sefton, M (2005) Litigants in Person: Unrepresented Litigants in First Instance Proceedings DCA Research Series 2/05 (London, Department for Constitutional Affairs). Mulcahy, L (2001) ‘The Possibility and Desirability of Mediator Neutrality: Towards an Ethic of Partiality’ Social and Legal Studies, Vol 10 505–27. Mulcahy, L (2006) ‘Feminist Fever? Cultures of Adversarialism in the Aftermath of the Woolf Reforms’ in Holder, J and O’Cinneide, C (eds) Current Legal Problems 2005 (Oxford: Oxford University Press). Naffine, N (1990) Law and the Sexes: Exploration in Feminist Jurisprudence (Sydney, Melbourne, Wellington and London: Allen and Unwin). O’Donovan, K (1993) Family Law Matters (London: Pluto Press). Oldersma, J and Davis K (1991) ‘Introduction’ in Davis, K, Leijenaar, M and Oldersma, J (eds) The Gender of Power (London: Sage Publications). Pearson, J and Thoeness, N (1988) ‘Divorce Mediation: An American Picture’, in Dingwall, R and Eekelaar, J (eds) Divorce Mediation and the Legal Process (New York, Oxford: Oxford University Press). Powles, G (1999) ‘Taking the Plunge: Integrating Legal Ethics in Australia’, Law Teacher, Vol 33 Issue 3 315–21. Rhode, DL (1981) ‘Why the ABA Bothers: A Functional Perspective on Professional Codes’, Texas Law Review, Vol 59 698–722. Richards, C (1997) ‘The Expertise of Mediating’, Family Law Vol 52. Riskin, LL (1996) ‘Understanding Mediator Orientations, Strategies and Techniques: A Grid for the Perplexed’, Harvard Negotiation Law Review Vol 1 Issue 7 8–51. Roberts, M (1992) ‘System of Selves? Some Ethical Issues in Family Mediation’, Mediation Quarterly, Vol 10 Issue 1 3–19. Roberts, S (1988) ‘Three Models of Family Mediation’ in Dingwall, R and Eekelaar, J (eds) Divorce Mediation and the Legal Process (Oxford: Clarendon Press). Roberts, SA (1996) ‘The Path of Negotiations’, Current Legal Problems, Vol 49 Issue 1 97–108. Shah-Kazemi, SN (2000) ‘Cross-cultural mediation: a critical view of the dynamics of culture in family disputes’, International Journal of Law, Policy and the Family, Vol 14 Issue 3 302–25. 113

Ethics and the family mediation process Slaughter MM (2000) ‘Chapter 3 Martial Bargaining: Implications for Legal Policy’ in Maclean, M (ed) Making Law for Families (Oxford: Hart Publishing). Taylor, A (1997) ‘Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence and Transformative Process’, Mediation Quarterly, Vol 14 Issue 3 215–36. Test Design Project (1995) Performance-Based Assessment: A Methodology for Use in Selecting, Training and Evaluating Mediators (National Institute for Dispute Resolution). The Chartered Institute of Arbitrators (2001) Code of Professional and Ethical Conduct Final Draft April 2001, Arbitration, Vol 17 No 3.273. The College of Mediators Code of Practice for Mediators (2019) ratified 25 February 2019; accessed online at www.collegeofmediators.co.uk/ sites/default/files/COM%20Code%20of%20Practice%20V3_0.pdf on 26 November 2019. The Royal Commission on Legal Services (1979) Final Report Volume One Cmnd 7648 (London: HMSO). Thoennes, N Salem, P and Pearson, J (1995) ‘Mediation and Domestic Violence Current Policies and Practices’, Family Court Review, Vol 33 Issue 1 6–29. Trinder, L, Hunter, R, Hitchings, E, Miles, J, Moorhead, R, Smith, L, Sefton, M, Hinchly, V, Bader, K and Pearce, J (2014) Litigants in Person in Private Family Law Cases (London: Ministry of Justice). Twining, W (1993) ’Alternative to What? Theories of Litigation, Procedure and Dispute Settlement in Anglo-American Jurisprudence: Some Neglected Classics’, Modern Law Review, Vol 56 Issue 3 380–92. Wall, JA, Stark, JB and Standifer, RL (2001) ‘Mediation: A Current Review and Theory Development’, Journal of Conflict Resolution, Vol 45 Issue 3 370–91. Webb, J (1999) ‘Developing Ethical Lawyers: Can Legal Education Enhance Access to Justice?’ Law Teacher, Vol 3 284–97. Webley, L (2004) ‘Divorce Solicitors and Ethical Approaches – The Best Interests of the Client and/or the Best Interests of the Family?’ Legal Ethics, Vol 7 Issue 2 231–50. Webley, L (2010) ‘Gate-Keeper, Supervisor or Mentor? The Role of Professional Bodies in the Regulation and Professional Development of Solicitors and Family Mediators Undertaking Divorce Matters in England and Wales’, Journal of Social Welfare and Family Law, Vol 32 Issue 2 119–33. 114

References Webley, L (2010a) Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role (New Orleans: Quid Pro Books LLC). Webley, L (2010b) ‘Solicitors as Imagined Masculine, Family Mediators as Fictive Feminine and the Hybridisation of Divorce Solicitors’ in Mortensen, R, Bartlett, F and Tranter, K (eds) Alternative Perspectives on Lawyers and Legal Ethics: Reimagining the Profession (Sydney: RoutledgeCavendish). Webley, L (2015a) ‘Legal Professional De(Re)Regulation, Equality, And Inclusion, And The Contested Space Of Professionalism Within The Legal Market In England And Wales’, Fordham Law Review, Vol 83 Issue 5 2349–67. Webley, L (2015b) ‘Chapter 17 When is a Family Lawyer, a Lawyer’ in Maclean, M, Eekelaar J and Bastard, B (eds) Delivering Family Justice in the 21st Century (London: Hart Bloomsbury, 2015).

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Chapter 7

Models, styles and third parties: a fresh look at three core conceptsin family mediation Barbara Wilson

Introduction This chapter revisits three concepts in the theory and practice of family mediation, drawing from my experience of almost three decades’ work as a family mediator in England and Wales, and reflecting on some of the complexities I have encountered in practice. Mediation models, mediation styles and third parties are much discussed in the alternative dispute resolution (ADR) canon and are still subject to debate. However, the ADR literature is diverse (Kressel and Gadlin 2009: 310), prodigious (Zarankin et al 2014: 140) and burgeoning, presenting a ‘fragmented understanding of the topic underlying the conditions to use mediation, mediators’ styles and tactics of intervention, and their effectiveness’ (Peleg-Baker 2012: 2). This creates an enormous challenge for researchers, commentators and mediators alike, and terminology may be surprisingly inconsistent. One author’s third party may not be another’s; one commentator’s model may be another’s style. In their endeavours to establish family mediation as a unique forum distinct from the practices of law and therapy, practitioners and other commentators have defined mediation by what it is not: not the practice of law, not therapy and so on (Gee and Elliott 1990: 99; Avruch and Black 1994: 47). The eclectic nature of the mediation field is reflected in the rich but disjointed scholarship from disciplines as disparate as law, international relations, anthropology, political science, mathematics, psychology and organisational science, to name but a few (Carnevale et al 2015: 146). The fact that mediation is therefore difficult to pin down makes terminological discrepancy inevitable; as does the particularisation of mediation by jurisdiction, culture, format and the matters in dispute – all of which, in my view, is exacerbated by the size of the canon itself. With this in mind, this chapter is an attempt to examine the three terms above, ascertaining how they are used and what they might mean.

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Models and styles Facilitative mediation, evaluative mediation and transformative mediation are three phrases which have been described as both mediation models (eg, Drews 2008; Goodman 2012) and mediation styles (eg, Daly and Higgins 2011; Zumeta 2018). In some cases, ‘model’ and ‘style’ are even used synonymously (Exon 2008: 577); as such, it may not be wise to assume that mediation models and mediation styles can be neatly bisected, and it is worth investigating exactly what these words might and might not mean. To do so, I will start with a brief review of some of the applications of the terminology in the literature. Models Wall and Dunne’s  (2012: 217, 223) literature review, drawn from 34 countries, found that the formulation of formal models of mediation practice ballooned after the 1990s, including as many as 25 new models at the time their paper was published. Some mediation models tend to be identified primarily with specific authorities, although these authorities are not necessarily the models’ progenitors or sole exponents. The most salient distinction between models has perhaps been that of facilitative versus evaluative (Riskin 1994). In the former, the mediator ‘assumes that the parties are intelligent, able to work with their counterparts, and capable of understanding their situations better than the mediator’ (Riskin 1996; cited in Quek 2013). In the latter, the mediator ‘assumes that the participants want and need her to provide some guidance as to the appropriate grounds for settlement – based on law, industry practice or technology – and that she is qualified to give such guidance by virtue of her training, experience and objectivity’ (ibid). To these prominent models can be added transformative mediation (Bush and Folger 1994), whose premise is that ‘mediation has the potential to do more than merely settle disputes. It can change the way people deal with conflict, “helping to transform society as a whole from a truce between enemies into a network of allies”’ (Irvine 2007: 4, citing Bush and Folger 2005: 14). As such, the transformative mediation model has somewhat loftier aspirations than the facilitative and evaluative models, which its authors believe make it incompatible with other models (Irvine 2007: 17, citing Bush and Folger 2005: 228). Besides this trio, notable mediation models include the problem-solving model (derived from Fisher and Ury 1981), which ‘focuses on the needs or interests of the parties, the reasons why they have adopted a particular position rather than the position itself’ (Funken 2001: 2); narrative mediation, which Irvine believes shares some of the premises of transformative mediation, such as ‘the “relational worldview”… and suspicion of problem-solving’ (Irvine 2007: 14, citing Winslade and Monk 2001); and structured mediation (Coogler 1978), which uses 118

Models and styles ‘communication and intervention techniques borrowed from labor mediation and the social sciences’ (Milne, Folberg and Salem 2004: 5). In some sense, these models occur along a spectrum, from transformative at one end to evaluative at the other, with the latter end preoccupied with more pragmatic goals than the former. However, such an analysis can hardly capture the specificities of all the models above. Nor is this list exhaustive; to it can be added humanistic mediation (Umbreit 1997); therapeutic mediation (Irving and Benjamin 1995); strategic mediation (Kressel 2007); reflexive mediation (Vindeløv 2012); insight mediation (Picard and Melchin 2007); and processual mediation (De Girolamo 2013). The claims made in favour of each model – and the corresponding counterclaims – deserve more extensive examination than is possible here; nonetheless, their proponents’ priorities can be gleaned from their names. As De Girolamo (2012: 109) reasons, models’ descriptors indicate the mediator’s goals, anticipated strategies and the direction of his or her practice model of choice: the mediator will act with the intent of fulfilling the objective of mediation, as understood by the mediator himself or herself. The different models above are therefore distinguished by what they seek to do, in addition to the disputes in which they are used (be they international, environmental, community, commercial or family). As such, models may or may not be used in conjunction, depending on their theoretical bases – and even where one model is argued to be incompatible with another, this too may be disputed (eg, Irvine 2007: 14 on transformative mediation). However, notwithstanding these complexities, a mediation model is ultimately a framework by which mediators understand their practice in the wider world of mediation and ADR (Alexander 2008: 98) – by contrast with a mediation style, which is altogether more individual and thus harder to pinpoint. Styles Eugene Emmanuel Viollet-le-Duc defined ‘style’ as residing ‘in the true and well-understood expression of a principle… and not in an immutable form’ (Saposnek 2003: 246). With more specific reference to ADR, Alexander (2008) alludes to a cluster of factors which influence mediator style, arguing that ‘mediators with technical-legal or judicial-arbitration backgrounds tend to intervene in the substantive aspects of the problem and adopt a more directive style’ (ibid: 104), and citing professional background and education as significant factors in determining the style of intervention (ibid: 103). Given the relatively nebulous nature of style as a general concept, it is perhaps unsurprising that mediator styles appear to be discussed less extensively than models of mediation. Attempts to identify how mediators ‘do’ mediation emerged at a relatively early point in ADR’s evolution (see Tracy and Spradlin 1994: 122–23 for a summary of formulations, already identified at that 119

Models, styles and third parties: a fresh look at three core concepts time). Debates about style moved centre stage after the publication of Riskin’s  (1994) original paper and subsequent ‘grid for the perplexed’ (Riskin 1996). Riskin identified two continua – the mediator’s role as facilitative to evaluative and practitioners’ customary approach to problem solving as narrow to broad – although Riskin (2003) later acknowledged the original grid’s limitations, offering a revised version. Nonetheless, Riskin’s grid is still frequently cited and used for various training and teaching purposes. Charkoudian’s (2012) study indicates some support for Riskin’s suggested dichotomy, endorsing Riskin’s original worries about ambiguity and quality assurance where participants choose mediators according to their professed style. Charkoudian criticises the lack of agreement on the very definitions of mediator styles, contending that participants who think they understand – and are seeking out – facilitative mediation may instead find two mediators who both claim to be facilitative, but provide radically different processes. Mediators’ own accounts of their work were found to be ‘not very accurate’, with significant discrepancies between claimed style and observed practice (Kressel et al 2012: 159). Charkoudian (2012: 381) concludes that what mediators call their style in use may be irrelevant (from a research perspective) and prefers to focus on mediators’ behaviours. As reported by Kressel and colleagues, different mediator strategies may indeed produce qualitatively different experiences for participants. Charkoudian’s criticisms are pertinent. Parties may prefer a mediator who purports to offer a specific type of intervention – a selection which may also reflect the recommendations of the disputants’ legal advisers. Hoffman (2011: 302) points out that lawyer representatives may be repeat players in ADR (as originally proposed by Galanter 1974: 97) – although it is worth noting that repeat legal players are, of course, normal in litigation. Repeat ADR players are likely to discuss the mediator’s work and refer clients to him or her accordingly. While this may be beneficial in certain situations, it does not necessarily resolve the above problems of discrepancy. Conversely, I  would speculate that mediators who regularly receive referrals from the same sources may develop their own conflicts of interest, preserving referral relationships in anticipation of future work; indeed, some mediators are appointed in-house, so are not truly independent. Without implying malintent, the potential disadvantages are obvious – especially for unrepresented parties who find themselves novice disputants interacting with repeat ADR players. The non-aligned nature of mediation needs to be protected if all the disputants are to experience the process as fair throughout. With all this in mind, the existing discussions of style therefore reveal it to be something of a shifting category and far less discernible, in theoretical terms at least: where a model of mediation pertains to a 120

Models and styles framework, mediation styles describe how mediators operate within – and indeed across – models. The highly personal nature of mediator style and its interactive and dynamic quality make it harder to categorise, and thus to analyse from an academic point of view. However, as I  hope to demonstrate below, the boundary between model and style may itself be somewhat elusive. Schema: where model meets style In their 2014 study, Zarankin et al (2014: 140) found that mediation is commonly depicted as a contingent process with three elements – contextual antecedents to the mediator’s behaviour, the mediator’s behaviour itself and the outcomes from that behaviour. The authors adopt Cantor, Mishel and Schwartz’s (1982) concept of schema, explained as the cognitive representation of individuals’ knowledge regarding an object, situation, role or event. A schema shapes a person’s evaluation of reality and guides his or her behaviours in response; as such, I construe the notion of schema as sitting at the confluence of model and style, combining the systematicity of the former with the idiosyncrasy of the latter. Zarankin et al argue that their research is consistent with Kressel’s  (2013: 732) summary of his own extensive empirical studies, undertaken with several colleagues over a period of 20 years: ‘neither unexamined intuition nor the reliance on formal models of practice provide anything like a complete account of how mediators decide what to do under the demanding and uncertain conditions under which they work. We have learned that tacit knowledge, which we have variously described under headings like mediator ‘styles,’ ‘mental models,’ or ‘schemas of practice,’ play a powerful role in such decision-making… often at striking variance with what practitioners consciously believe they are doing.’ The dominance of personal schemata suggests that mediators may be eclectic rather than purist in their work, interpreting – rather than strictly adhering to – particular formats, even those which they purport to use exclusively. While unsupported claims about models and styles must be viewed accordingly, it is nevertheless crucial that practitioners are not automatically perceived as miscreants in regard to either theory or practice. As Roberts (2016: 225) warns: ‘Equally research should be informed by the experiential and reflective input of practitioners whose contribution needs to be respected and not dismissed as inconsequential, biased or selfserving. If the practice of mediation is regarded as part of and as an adjunct to legal practice rather than as a genuinely independent process, there will be scant incentive to embrace other theoretical paradigms of understanding.’ 121

Models, styles and third parties: a fresh look at three core concepts So, the distinction between model and style may be quite artificial. In practice, the mediator is taught a model – or models – and then develops a style of delivery, making the two categories inseparable. And while it may be useful to identify, compare and contrast models, a mediator ultimately has a particular style which may be overriding: schemata allude to the interplay between models and styles of practice, and thus perhaps go some way to reconciling the theoretical and the personal.

Third parties Family mediators are trained to deal primarily with two disputants and typically pay only limited attention to others, apart from any minor or dependent children. Yet the impact and consequences of separation or divorce usually reach far beyond the immediate couple: extended family, friends, neighbours, colleagues and many others may be supportive and helpful, but can also form vociferous alliances in defence of either side. There may be free-for-all exchanges on social media platforms or even direct interference. Like ripples on a pond, a couple’s conflict can directly or indirectly affect a surprisingly large number of people. ‘Third party’ is a common but ambiguous phrase which the ADR literature employs to accommodate the actors within a mediation. It often means the mediator, but can refer to a host of other persons or entities who participate in – or have an impact on – the process; indeed, its usage sometimes seems quite indiscriminate. ‘Party’ itself is an awkward word, often applied with equal alacrity. Yet clarity is essential to the accurate representation of both status and function, and it is worth unpicking the determinative differences between ‘third parties’, ‘parties’, family mediators and other possible constituents to untangle this terminological knot. Given the relatively incoherent conceptualisation of party status in family mediation, it may be useful to look to the work of political scientists for more advanced theories drawn from multilateral conflicts and international crises studies. The participation of other actors presents dispute design challenges beyond the routine experience of family mediators, and needs ‘especially careful consideration in terms of attendance and representation’ (Strasser and Randolph 2004: 100). Conceptually, any adaptation of family mediation’s bilateral negotiation structure is likely to introduce theoretical and logistical complexities; these can be similar to those found in multilateral conflict assessment and consensus-building models, such as those identified by Susskind and Thomas-Larmer (1999) in public dispute resolution. Morgan (1993: 266–267) argues that the spatial representation of conflict can handle any number of actors; any theory designed to explain behaviour and outcomes in such arenas cannot be complete without accounting for the behaviour of other constituents. While Morgan’s context is glaringly different from my own, I see little reason not to apply the same logic in the arena of family mediation. 122

Third parties In their analysis of multilateral negotiations, Crump and Glendon (2003: 2) argue that researchers should engage in debate about how a ‘party’ is best conceptualised, laying out their own distinctions between ‘primary’ and other parties in multilateral disputes. The authors define ‘primary parties’ as those with the ability to make and communicate decisions: primary parties ‘own’ the problem or opportunity under negotiation, and directly experience the consequences of the negotiated outcome. These criteria can be applied within the context of family mediation in this jurisdiction, which typically features only the couple who are divorcing, ending a civil partnership or otherwise dealing with separation. Both disputants ‘own’ the problem equally and can make and communicate their decisions to others; both will directly experience the consequences of their negotiated outcome (notwithstanding the possible implications for children, which I address separately below). Importantly, as well as fulfilling Crump and Glendon’s maxims, it is the couple – and only the couple – who sign the agreement to mediate. As a result, the disputants are not so much ‘primary’ parties as the parties, and the family mediator’s only clients in that particular case. While ownership and decision-making functions need to be established in less common circumstances – such as disputes involving adult siblings or elders, or where arrangements for grandchildren are negotiated between grandparents and birth parents – I argue that the parties are those who alone have authority to settle (here also termed ‘clients’). This leaves the mediator as a distinct figure: he or she is separate in essence and function from the miscellany of others who may have an interest in the process. The mediator as the third party To account for the mediator’s own status, two processes must mesh for mediation to occur. First, the interacting or disputing parties must request or permit a third party to mediate; second, the third party must agree to mediate (Wall, Stark and Standifer 2001: 371). Adopting and applying these determinants to family cases, only the mediator can rightly be understood as the true ‘third party’ to a mediation, as he or she is asked – and agrees – to assist the couple in his or her mediatory role. Moore (2003: 150) introduces lawyers, therapists and other resource persons as ‘secondary parties’ to the mediation, thus distinct from the parties themselves and from the wider category of ‘third parties’; however, his ‘secondary parties’ do not meet the party ownership and decision-making criteria. As far as other actors or constituents are concerned, anyone else enlisted to attend or otherwise assist does so at the parties’ behest, on the basis that their input would be useful and is therefore justifiable. However, participation alone does not make other actors either parties or third parties. While mediators typically identify themselves as occupying a neutral and impartial space above the fray, their actual role is much more complicated. Among the foremost ADR authorities, Gulliver’s  (1979: 213–214) early 123

Models, styles and third parties: a fresh look at three core concepts analysis is one of the most telling and bears repeating. He writes of the mediator: ‘The disputing parties retain their ability to decide whether or not to agree to and accept proposals for an outcome, irrespective of the source of the proposals. Yet clearly the mediator exercises influence in some degree, whether he remains largely passive or virtually controls the exchange of information and the learning process. He himself interacts with each party and with both together, and they may communicate to and through him. He becomes a party in the negotiations. He becomes a negotiator and as such, he inevitably brings with him, deliberately or not, certain ideas, knowledge, and assumptions as well as certain interests and concerns of his own and those of other people whom he represents. Therefore he is not, and cannot be, neutral and merely a catalyst. He not only affects the interaction but, at least in part, seeks and encourages an outcome that is tolerable to him in terms of his own ideas and interests. He may even come into conflict with one or both of the parties.’ While Gulliver’s analysis casts the mediator as a party – at odds with my own, which sees him or her as a, or rather the, third party – the thrust of this argument is in line with my view that the mediator’s instrumentality is the defining feature in establishing his or her role. De Girolamo (2012), following her own year-long ethnographic study with commercial mediators, makes various observations that endorse Gulliver. Far from standing outside the dispute, De Girolamo suggests that the mediator has a ‘fugitive identity’ (105): this identity permeates and shifts throughout the process, reflecting the roles of a traditional neutral third-party intervener, a party and an adviser. She later states that her processual framework is specific to commercial mediation (2013: 355), in which practitioners are typically highly proactive and even directive; but her work provides a complex and nuanced reconceptualisation of mediator agency that could well apply in other practice areas. The status of the child Family mediators in this country have long been required and trained to focus on the needs of minor children and young people were previously involved through the practice of direct consultation with children (DCC). DCC standards are no longer separately available, although they are referred to in the Family Mediation Council’s (FMC) working group paper on child-inclusive mediation (CIM) (FMC 2017a: 1). In DCC, with the consent of both parents and the child, and subject to appropriate safeguards, the child’s views were canvassed separately and reported back to the parents by the mediator, usually without the child present. CIM has since been introduced as the required form of practice for 124

Third parties accredited family mediators (FMC  2018a; FMC  2018b; FMC  2018c). In many respects, CIM is not dissimilar from DCC, although there is a shift of emphasis whereby mediators are enjoined actively to encourage parents to involve their children in the process, together with specific requirements that practitioners undertake annual CIM training and mediate a specified number of CIM cases over a period of time. While it is recommended that there be a non-legal presumption that children and young persons aged 10 years and above should be offered the opportunity to have their voices heard directly during dispute resolution processes affecting them if they wish (Voice of the Child Dispute Resolution Advisory Group 2015: ii), the child or young person is unrepresented and is not a party (ibid: 6 para  17). Children are not asked or given power to make choices or decisions, which remain the prerogative of the parents or other adults with parental responsibility (FMC  2017: 3). As such, I  exclude children from the category of ‘third party’, in line with my stance on the position of the mediator, above; however, they do need separate mention due to their special status. Following divorce or separation, children and young people may be cared for on a daily basis by their birth parents’ new partners or spouses. Although legal status may not have been conferred on these adults, there may nevertheless be strong emotional and caring attachments between them and the children. Where new partners contribute significantly to the care of children in a blended or reconstituted family, their participation may be critical to making a parenting plan work – for example, some new partners collect children from school or facilitate handovers. However, the participation of other adults in mediation does not confer them with conjoined authority with the birth parents, and any invitation extended to them must originate with clients and not the mediator. I  have often found it useful to prepare a written remit with the birth parents setting out the usual confidentiality restrictions and determining the extent of any proposed participant’s involvement. It should be borne in mind not only that children have a status of their own within the mediation process, but also that adults other than their birth parents may have a legitimate – or indeed vital – role to play in the process. Inside and outside the room: the other constituents One advantage of mediation’s informality is that it allows much ‘greater flexibility in the question as to who may attend’ (Strasser and Randolph 2004: 100). However, as Wade (2003: 124) states, ‘constituents may be physically present during a negotiation or mediation as an audience; or absent in body but present in spirit and influence’. Relatively little is written about the functionality, power, influence or management of those whom Wade (2003: 123) describes as being ‘in the background, sometimes in the shadows’. The number of individuals and agencies offering services to those experiencing relationship breakdown, but not present in the mediation has grown rapidly in recent years. There is now what can only 125

Models, styles and third parties: a fresh look at three core concepts be described as a plethora of divorce and other relationship experts, including coaches, consultants, support groups, columnists, helpline providers and website hosts. Almost anyone can sell their wares in what has become an unregulated ‘break-up’ industry; and apart from certain nationally recognised qualifications, there is no way to ascertain the quality or competence of advice givers who are otherwise self-appointed. With this in mind, the potential influence of those outside the room should not be underestimated. The FMC provides for the participation of persons other than the disputants, where both parties consent. Its code of practice governing accredited family mediators’ work in England and Wales (FMC  2018a – hereinafter, ‘the Code’) states that solicitors or counsel acting for the parties may participate in the process; as can interpreters, accountants, actuaries, independent financial advisers and other advisers (ibid: 8.15– 16). The Code also allows for ‘third parties’ – which, in a further example of the variation in usage of this term, it defines as ‘those with an interest in the proceedings, such as new partners, parties with a legal or beneficial interest in property that is the subject of dispute, or other family members’ (ibid: 8.17). While the Code makes reference to both professionals and laypeople, the distinction between them is enormously significant: whether or not the other constituents appear in a professional capacity will determine their role and conduct in the process. There is a wealth of research into what counts as expertise, some of which I  cover elsewhere (Wilson 2011); the distinction I  make between professionals and laypeople is therefore somewhat ad hoc. However, one relevant factor here seems to be Moore’s contrast between bureaucratic and horizontal: while not claiming that this aligns precisely with the professional versus layperson distinction, Moore argues that those with the authority to make decisions exist in either hierarchical or horizontal formats (Moore 2003: 438–39). The former format is clearly more closely aligned with the professionals associated with the ADR industry and the latter more closely with those attending or intervening in a non-professional role. A taxonomy of other constituents Having argued above that ‘third party’ properly refers only to the mediator, the other constituents can be many and varied. The term currently en vogue for people or organisations with an interest in a given situation seems to be ‘stakeholders’; however, in my experience of mediation, this word is unhelpfully non-specific, lumping in the people most profoundly affected by the process with those whose involvement may be nothing more than fleeting. Wade (2003), on the other hand, perhaps goes too far in the other direction, listing ‘supporters, influencers, bosses, stakeholders, third parties, constituents, outsiders, armchair critics, bush lawyers, sticky beaks, 126

Third parties nosey parkers, ratifiers, destabilisers, tribal members, intermeddlers, cheersquads, principals, hawks, doves or moderates’ among those who may exert power over visible negotiators (2003: 123–24). Reading this list, practitioners will no doubt recognise some of the archetypes, notwithstanding the Australian colloquialisms and gentle rudeness; and the length of the list serves to demonstrate the number of actors who can make serious incursions in a mediation’s integrity without actually showing up. Borrowing a few words from Wade’s informal inventory, I  develop below my own taxonomy of other constituents who may participate in, impact on or influence conventional bilateral family mediations. Among the professionals involved in the process, a distinction can be made between those instructed by or acting on behalf of both parties, those instructed by or acting on behalf of one party and those who are have no such relationship with either party – termed ‘facilitators’, ‘advocators’ and ‘onlookers’, respectively. An analogous distinction exists among laypeople involved in the process: they may be concerned about the outcome for both parties and determined not to pick a side; they may be on the side of one particular party; or they may – as with involved professionals – have no investment in either party. These I  respectively term ‘alongsiders’, ‘cheerleaders’ and ‘rubberneckers’, with the latter term taken from Wade’s list above (also perhaps subsuming his ‘intermeddlers’, ‘armchair critics’ and ‘nosey parkers’). As such, this adds a three-way contrast of interest which is orthogonal to the two-way distinction between professionals and laypeople above. Professionals

Laypeople

Facilitators

Alongsiders

Investment in one party

Advocators

Cheerleaders

Investment in neither party

Onlookers

Rubberneckers

Investment in both parties

Two things should immediately be stressed at this point. First, the welfare of any minor or dependent children must be paramount in any mediation, as discussed above, and therefore everyone involved is required to prioritise the best interests of the child. Second, the taxonomy is not intended to deny the complexity of real human relations or the dynamic shifts in responsibility which can occur in the process; instead, it attempts only to create broad-brush categories. Someone who starts as a cheerleader for one party may ultimately become an alongsider with the interests of both parties at heart – or indeed vice versa. Nonetheless, this taxonomy provides a useful starting point for the further discussion of other constituents. Facilitators This grouping does not include mediators and divorce arbitrators (as they are, in my understanding, true third parties), but does include family 127

Models, styles and third parties: a fresh look at three core concepts therapists and counsellors or other specialists providing support to both disputants. Many of Moore’s ‘resource persons with specialized skills’ (2003: 150) appear here, such as child consultants, interpreters, pension actuaries and financial planners, where the parties give joint instructions; jointly instructed advice is often necessary in high-net-worth cases and reports may be important where there are substantial pension funds. Legal representatives working in the field of collaborative law are also facilitators, dedicated as they are to taking a more holistic view of the conflict and working together to resolve it. Interpreters are a classic example of inroom facilitators whose expertise largely lies outside the realms of ADR and legal practice; the rise in international cross-border family disputes means that their inclusion in mediation is becoming more frequent. However, Hertog (2017) argues that the communicative dynamics of mediation are different enough to present a profound challenge to legal interpreters, and that there is not yet a clear understanding on the part of either mediators or interpreters of what it means to interpret in mediation (although see Townsley 2011; Scarpa and Orlando 2017). Advocators A broader group than ‘advocates’ stricto sensu, this category includes the majority of lawyers and legal representatives, as well as mentors, conflict coaches and counsellors providing support for one party rather than facilitating the process in a relatively impartial manner. Also included is the majority of mental health professionals involved in a mediation, as these typically work on a one-to-one basis (Mayer 2004: 238). The facilitator/ advocator distinction is critical, as some of Moore’s ‘resource persons’ (ibid) may in fact be instructed by one party; as such, some professionals from the group above may, under different instruction, also appear here. Onlookers Within this grouping, I  place legislators, policy makers, government agencies (eg, the Legal Aid Agency), members of the judiciary, relevant professional regulatory bodies, members of the media such as journalists and documentary makers, and others with a legitimate public interest in the process. Children and Family Court Advisory and Support Service advisers and other professionals specifically appointed to represent or report on minor children are not considered facilitators in the terms described here, as their interest is not in the disputants as such; however, they are more than mere onlookers, as they are invested in the resolution of the conflict in the best interests of the child, and perhaps therefore exist somewhere between the two categories. Alongsiders This category of non-professional others covers close members of the extended family, friends, neighbours and colleagues with an equal interest 128

Third parties in both parties. Alongsiders appear with greater frequency in conflicts which are less polarised; in situations of greater acrimony, cheerleaders will appear in their stead. Moore (2003: 149) notes that friends and observers are often used by the mediator and the parties as option generators in cultures where collectivism and group decision making are prized (although he does not specify the societies to which he refers); where these are alongsiders, they may help to ensure the fairness and implementation of the agreement (ibid). Cheerleaders Here, too, are found family, friends and the like, with the critical distinction that their allegiances lie with one disputant rather than both. New partners and spouses typically appear as cheerleaders; while often excluded because they may not be seen as helpful or because the other party often objects, in some instances the parties may sometimes consider their presence vital in order for it to succeed (for an analogous point on process design in organisational conflicts, see Phillips 2001: 153). However, in certain cases, new spouses and partners may act more as alongsiders, should they take the view that supporting the mediation for both the separating parties is in their own, or perhaps the wider, interest. McKenzie Friends – unregulated lay assistants with no automatic rights of audience – are engaged by litigants in person and therefore constitute a further type of cheerleader. Given the risk of power imbalances and undue influence that can accompany a unilateral request to include a cheerleader, mediators may need to consider whether mediation should proceed, making sure they are not perceived as biased. Rubberneckers This final category is perhaps the fastest growing in the era of social media. While less invested in the process and not professionally engaged, their influence should not be dismissed. A casual tweet or Facebook post may seem to be the work of a cheerleader or an alongsider; however, if its author transpires to have little interest in the outcome for either party – and is thus a rubbernecker – this hardly means that the intervention’s impact will be neutralised. Here again, the archetypal nature of these categories should be stressed: while authors of blogs on ADR issues may see themselves as onlookers, the effect they have on the disputants may rather be as rubberneckers. These categories cover a variety of people; however, there is no hierarchy between them indicating the relative exercise of power in any specific case. It may be the alongsiders, cheerleaders and/or rubberneckers – that is, the laypeople – who have the most influence on the parties; at worst, they can be so disruptive as to derail the negotiations. Equally, while there is no doubt that lawyers are the most influential professionals in the process, 129

Models, styles and third parties: a fresh look at three core concepts there is no reason to assume the automatic dominance of one group over another among the remaining professionals.

Of words and worldviews: how mediation is construed In the sections above, I  have explored the ways in which the phrases ‘model’, ‘style’ and ‘third party’ are used; in all three cases, usage is highly contingent on the construal of mediation itself. This is seen most clearly in the distinctions between the mediation models which I  described; however, it is also visible in the application of the term ‘mediator style’, and in who does and does not count as a third party according to various sources. Without getting into a definitional tennis match, it is useful at this point to consider how mediation is construed – in particular, its delineating features and how these pertain to the phrases under discussion in this chapter. Alberstein (2007: 324) suggests that two theoretical paradigms define the borders for developing models of mediation, largely because she views the discipline as straddling the social sciences and the humanities, positioned between law and psychology. These paradigms are the rational-scientific paradigm, guided by game theory and the social sciences; and the interpretive paradigm, inspired by the humanities and based on storytelling and narratives (ibid; emphases in original). The emphasis which different models place on these paradigms determines the models themselves. As mediator style allows for a shifting between models, it thus allows the process to move between these paradigms. The concept of ‘schema’, which I use here to denote the confluence of model and style, is perhaps the best way to capture the fluidity of this situation: the mediator operates across boundaries and with adaptability, but is nonetheless somewhat bound by the structures and principles within models of mediation, as well as the personal attributes which govern his or her own style. The weight accorded to each of these paradigms may also have implications for who is and is not considered a ‘third party’ according to various authors – a topic on which I take a relatively restrictive view, so as to avoid terminological sloppiness. Another approach to the delineation of mediation comes from Liepmann (1986: 98, citing McCrory 1981), who isolates four ‘traits’ as fundamental to mediation: mediator neutrality (both perceived and actual); the voluntariness of the process; the confidentiality of the relationships between the mediator and the parties; and the procedural flexibility available to the mediator. While this list is debatable (eg, see Gulliver 1973: 668, Folger and Jones 1994: 225; and Mayer 2004 on mediator neutrality), and unfortunately fails to mention the mediator’s lack of authority to settle (Liepmann 1986: 99), I  believe it is still helpful in identifying the core characteristics of the process. The emphasis which the practitioner places on these traits will also have implications for the model of mediation, the mediator’s style and perhaps even how the phrase ‘third party’ is applied. 130

Conclusion Mediation is, in some sense, a ‘magpie profession’, freely adopting concepts from other disciplines (see Sandercock 2000: 134; Seedhouse 1997: 9; and Wilson and Irvine 2014: 6). However, with the arrival of online dispute resolution (FMC, 2016) come new working practices in family mediation, with associated technological opportunities and constraints; in this context, such adaptability may ultimately prove quite valuable.

Conclusion In this chapter, I have discussed some of the current issues of mediation models and mediator styles, and their conflation in the literature, arguing that models and styles have been interwoven and are therefore hard to separate. Drawing on the wider dispute resolution literature, I  have argued that – in family mediation at least – only the couple concerned can properly be identified as parties to the process, because they alone have ownership status and decision-making authority, based on the agreement to mediate. I also argue that only the mediator or arbitrator can function as a third party. While the couple’s circle of family, friends and advisers may be significantly affected by the proposals made, this does not make them parties. Instead, they have a range of contributory roles, which I  have described according to their features (extending Wade 2003). Equally, while children have a discrete place in mediation, with their needs remaining paramount throughout, they are not decision-making parties in the same way as the couple. The issues identified in this chapter are current, but by no means new: they have been debated in the field for many years. What is perhaps ‘fresh’ is our evolving understanding of the theory and practice of family mediation, as experienced in practice and articulated in the expanding literature. ADR scholarship continues to provide increasingly sophisticated contributions to our field, but disagreements will no doubt continue. Mediators will need to navigate the complexities awaiting them as they comply with new requirements, while trying to keep their unique, non-partisan and finite role in the management of family disputes. There is still much to be learned from the work of early ADR authorities, some of whom have yet to be bettered. I believe that we must not lose sight of family mediation’s fundamental purpose, which is elegantly simple: two people, in dispute, choose to sit down with a mutually acceptable third party who can help them to move forward with the least possible damage to their family as whole.

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References Moore, CW (2003) The Mediation Process Practical Strategies for Resolving Conflict (San Francisco: Jossey-Bass). Morgan, TC  (1993) ‘Mediators Allies and Opportunists Third Parties in International Crises’, in Booth, WJ, James, P  and Meadwell H  (eds) Politics and Rationality (Cambridge: Cambridge University Press). Peleg-Baker, T  (2012) ‘The Cognitive Characteristics of Mediators’ Decision-Making: Beyond the Dichotomy of Styles – the Devil Is in the Details’, SSRN, 1  August; accessed online at https://ssrn.com/ abstract=1640558 on 1 June 2019. Phillips, BA  (2001) The Mediation Field Guide Transcending Litigation and Resolving Conflicts in Your Business or Organization (San Francisco: Jossey-Bass). Picard, CA and Melchin, KR  (2007) ‘Insight Mediation: A  LearningCentered Mediation Model’, Negotiation Journal, Vol 23 Issue 1 35–53. Quek, D  (2013) ‘Facilitative Versus Evaluative Mediation: Is There Necessarily a Dichotomy?’, Asian Journal on Mediation, 66–75; accessed online at https://ssrn.com/abstract=2889142 on 1 June 2019. Riskin, LL  (1994) ‘Mediator Orientations, Strategies and Techniques’, Alternatives to the High Cost of Litigation, Vol 12 111–14; accessed online at https://ssrn.com/abstract=1506704 on 1 June 2019. Riskin, LL (1996) ‘Understanding Mediators’ Orientations, Strategies, and Techniques: A Grid for the Perplexed,’ Harvard Negotiation Law Review, Vol 1 Issue 7 7–15; accessed online at https://ssrn.com/abstract=1506684 on 1 June 2019. Riskin, LL (2003) ‘Decisionmaking in Mediation: The New Old Grid and the New New Grid System’, Notre Dame Law Review, Vol 79 Issue 1 1–54; accessed online at http://scholarship.law.ufl.edu/facultypub/635 on 1 June 2019. Roberts, M  (2016) ‘Interdisciplinary influences on family mediation: A chronicle of colonization foretold?’, Mediation Theory and Practice, Vol 1 Issue 2 211–31. Sandercock, L  (2000) ‘Commentary: The Magpie Profession’, Planning Theory and Practice, Vol 1 Issue 1 134–35. Saposnek, D  (2003) ‘Style and the family mediator’, in Bowling, D  and Hoffman, D (eds) Bringing Peace Into the Room: How the Personal Qualities of the Mediator Impact the Process of Conflict Resolution, (San Francisco: Jossey-Bass). 135

Models, styles and third parties: a fresh look at three core concepts Scarpa, F and Orlando, D (2017) ‘What it takes to do it right: an integrative EMT-based model for legal translation competence’, Journal of Specialised Translation, Vol 27 21–42. Seedhouse, D (1997) Health Promotion: Philosophy, Prejudice and Practice (Chichester: John Wiley and Sons). Strasser, F and Randolph, P (2004) Mediation: A Psychological Insight into Conflict Resolution (London: Continuum). Susskind, L  and Thomas-Larmer, J  (1999) ‘Conducting a Conflict Assessment’, in Susskind, L, McKearnan, S and Thomas-Larmer, J (eds) The Consensus Building Handbook: A  comprehensive guide to reaching agreement (Thousand Oaks: Sage Publications). Townsley, B (2011) ‘The Training of Trainers for Legal Interpreting and Translation’, in Townsley, B  (ed) Building Mutual Trust: A  Framework Project For Implementing EU Common Standards In Legal Interpreting And Translation (Middlesex: Middlesex University Press); accessed online at http://eprints.mdx.ac.uk/12235/ on 1 June 2019. Tracy, K and Spradlin, A (1994) ‘Talking Like A Mediator: Conversational Moves of Experienced Divorce Mediators’, in Folger, JP and Jones, TS (eds) New Directions in Mediation Communication Research and Perspectives, (Thousand Oaks: Sage Publications). Umbreit, MS (1997) ‘Humanistic Mediation: A Transformative Journey of Peace-Making’, Mediation Quarterly, Vol 14 Issue 3 201–13. Vindeløv, V  (2012) Reflexive Mediation with a Sustainable Perspective (Copenhagen: DJØF Publishing). Voice of the Child Dispute Resolution Advisory Group (2015) ‘Final Report of the Dispute Resolution Advisory Group’, Ministry of Justice; accessed online at https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/421005/voice-of-the-childadvisory-group-report.pdf on 1 June 2019. Wade, J  (2003) ‘Bargaining in the Shadow of the Tribe and Limited Authority to Settle’, Bond Law Review, Vol 15 Issue 2 115–43; accessed online at www.mediate.com/pdf/BargainingintheShadowoftheTribe.pdf on 1 June 2019. Wall, JA and Dunne, TC (2012) ‘Mediation Research: A Current Review’, Negotiation Journal, Vol 28 21–44. Wall, JA, Stark, JB and Standifer, RL (2001) ‘Mediation: A Current Review and Theory Development’, Journal of Conflict Resolution, Vol 45 Issue 3 370–91. 136

References Wilson, B  (2011) ‘“Naughty departures”: expertise, orthodoxy and the role of theory in the practice of Mediation’, in Deleuran, P (ed) Conflict Management in the Family Field and in other Close Relationships – Mediation as a Way Forward (Copenhagen: DJØF Publishing). Wilson, B  and Irvine, C  (2014) ‘What do we know about mediators? A short literature review’, SSRN, 14 October; accessed online at https:// ssrn.com/abstract=2510786 on 1 June 2019. Winslade, J and Monk, G (2001) Narrative Mediation: A New Approach to Conflict Resolution (San Francisco: Jossey-Bass). Zarankin, A, Wall, JA and Zarankin, TG (2014) ‘Mediators’ Cognitive Role Schema,’ Negotiation and Conflict Management Research, Vol 7 Issue 2 140–54. Zumeta, Z  (2018) ‘Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation’, Mediate.com, 27  February; accessed online at www.mediate.com/articles/zumeta.cfm on 1 June 2019.

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Chapter 8

The meaning of power in family mediation: new forms and functions Marian Roberts

Introduction Power permeates all dispute resolution processes. In respect of alternative dispute resolution (ADR) processes, and mediation in particular, power has constituted a unique and dominant focus of critical attention. Underpinning almost all critiques of mediation, concerns about power (hidden and overt) form their crux, whatever their primary focus – whether settlement itself, the politics of informal justice, neutrality and autonomy, justice and fairness, gender and cultural issues, language or models and styles of practice (eg, Abel 1982; Auerbach 1983; Fiss 1983; Grillo 1991; Astor 1994). This chapter will explore the impact of power, its meaning and relevance, in the context of family mediation, for mediators as well for those parties who engage in the process.1 This will include the ways in which mediators themselves have faced power issues, identifying and addressing the implications both of their own power – potential and actual – in orchestrating the mediation process and of the diverse capacities in which the parties themselves might hold and/or exercise power in the process. The chapter will also examine how academic and research studies have informed understandings about the operation of power on practice and, in particular, the ways in which its negative impact can be offset to protect the parties and the integrity of the process (Grillo 1991; Astor 1994; Field 1994; Keys Young 1996). The chapter will conclude with a consideration of how new and complex forms of power, some with insidious manifestations, are having a direct influence on the ethics and complex dynamics of current family mediation practice.

What is power in this context? ‘The question of power remains a total enigma….It is often difficult to say who holds power in a precise sense, but it is easy to see who lacks power’ (Foucault 1972: 213).

139

The meaning of power in family mediation: new forms and functions For the purposes of this chapter, ‘power’ is defined as ‘the capability of one human actor or group of actors to make others do things they would not otherwise have done’ – power, in other words, as a force for coercion and domination (Roberts and Palmer 2005: 132). Such an understanding characterises power as an essential feature manifest in all dispute resolution processes. The problem of power differentials affects private negotiations, bilateral lawyer negotiations, door-of-the-court settlements and adjudication. Notwithstanding the ideal of equality of forms of justice before the law, exploitation of the weaker party by the stronger party is recognised to be endemic in the civil justice system (Woolf 1996). While court intervention is likely to be most appropriate ‘in a setting where conflict occurs between unequal strangers, when a court can, at least in theory, rectify an imbalance by extending the formalities of equal protection to weaker parties’, research exposes the fact that the ideal of equal justice of the law is incompatible with the social and economic realities of unequal wealth, power and opportunity: ‘The austere neutrality of the law is constantly eroded by the special protection that its form and substance provide to privileged members of society’ ( Auerbach 1983: 120, 143–4). New inequalities can also be created depending on the resources of power of the parties (eg, wealth, status, legal endowments) or sources of weakness (eg, lack of access to legal aid, unequal economic and social opportunity, sexual discrimination) (ibid; Ingleby 1983; Mather, Maiman and McEwen 1995). Gulliver distinguishes between potential power and persuasive strength, highlighting the complexity and unpredictability inherent in the dynamics of the actual interaction of negotiations and the danger of assuming an inevitable conversion of potential power into effective persuasive strength: ‘Negotiations are the interplay of relative strengths as they work, through both antagonism and co-ordination, towards an outcome’ (Gulliver 1979). Gulliver highlights three factors that are recognised to affect the processual and power dynamics of mediation – first, the parties’ use of the resources available to them and the type and scale of the disparities that result from the unequal distribution of those resources; second, the mediator’s potential to exceed his or her legitimate authority by influencing or manipulating the course of the negotiation as well as the substantive issues in discussion, with the result that unacceptable pressures can be put upon one or both of the parties who then act, or fail to act, in ways they would not otherwise have done; and third, the impact of the macro-social context – ‘the impingement of the outside world’ – on negotiations, which do not take place in a social or cultural vacuum and are affected, however diversely and diffusely, by prevailing norms, rules and standards, as well as by the external pressures put on parties in mediation from those who are not participants (ibid: 187). 140

Bargaining power Where mediation is mandated, new imbalances of power arise as compulsion inevitably and officially privileges one party, the willing party, and creates new vulnerabilities for the unwilling party (Ingleby 1993): ‘Mandatory mediation provides neither a more just nor a more humane alternative to the adversarial system of adjudication of custody, and therefore, does not fulfil its promise… Mandatory mediation can be destructive to many women and some men because it requires them to speak in a setting they have not chosen’ (Grillo 1991:1549–50).

Bargaining power It is recognised that power is always ‘there’, encompassing a complex, multiple and often imponderable range of resources not always limited to material or normative resources – for example, love, truth, guilt, personality, all enmeshed (Roberts and Palmer 2005). Yet there is no precise definition of bargaining power in the context of family disputes. This is because there is no simple construction of the issue of power inequality in families, just as there is no single truth about relationships, rather ‘a repertory of truths’ (Seidenberg 1973: 97). The richness and irreducibility of personal relationships are exemplified, for example, in the view of marriage as a shared imaginative construct, a ‘subjectivist fiction’, as well as the primary political experience of those adults involved: ‘Whatever the balance, every marriage is based upon some understanding, articulated or not, about the relative importance, the priority of desires, between its two partners. Marriages go bad not when love fades – love can modulate into affection without driving two people apart – but when this understanding about the balance of power breaks down, when the weaker member feels exploited or the stronger feels unrewarded for his or her strength’ (Rose 1985:15). Unhappiness in marriage may occur, therefore, when ‘two versions of reality rather than two persons [are] in conflict’ (ibid). This is a realm of personal power relations that is for the most part inaccessible to outsiders and may also be, if not unperceived by the parties themselves, then unacknowledged by them. This picture is complicated further by the role of gender in negotiations, including the different perspectives that men and women may bring to relationships, morality and moral problems (Gilligan 1982). Gilligan’s research suggests that women and men may speak in different languages that they assume have the same meaning, ‘using similar words to encode disparate experiences of self and social relationships’ (ibid: 173). Because these languages share an overlapping moral vocabulary, misunderstanding and mistranslation can arise which impede communication and limit the 141

The meaning of power in family mediation: new forms and functions potential for cooperation (see also Menkel-Meadow 1985; Tannen 1990; Morrow 1998). It can be argued, for example, that women tend to associate power with the capacity and strength to nurture; while for men, power is associated with assertion and aggression. Other feminists criticise what they view as gender-constructed dichotomies, denying that such differences exist or arguing that differences between the sexes are not innate and therefore inevitable, but are rather the result of socialisation (eg, Williams 1989; Fine 2018). Any examination of bargaining power must nevertheless take into account the tension between the complementary ethics that might motivate individual women and men – an ethic of care and responsibility, and an ethic of rights and self-advancement respectively – and how this might have an impact on same-sex relationships. While the Gilligan study has been taken by some – mistakenly, it is claimed – to confirm the view that women, having inferior negotiation skills, would be disadvantaged in negotiation, it rather identified the different factors that motivate women and men and which might have an impact on their performance in negotiations (Field 1996). As Field also notes: ‘[G]eneralities about gender and performance in negotiations problematically attribute a homogeneity of behaviour to women as a group. It must be remembered that women of different ages, cultures, levels of education and social standing will approach mediated negotiations in many different ways’ (ibid 268). Additional sources of power imbalances – such as biological ties with children, legal and social discrimination based on sexual orientation and gender identity, family support and personal self-confidence – have been identified most recently in respect of non-heteronormative families participating in mediation (Moscati 2015). While complex power relationships of many kinds (visible and invisible) exist in families, it is necessary to acknowledge that these are not inherently exploitative, improper or destructive (Wade 1994). One of the most influential analyses of forms of bargaining power in respect of mediation is that constructed by Bernard Mayer (Mayer 1987; 2000). In identifying 13 categories of power, Mayer makes a broad distinction between structural and personal power. The former is located in the social, legal and practical context of the dispute; while the latter resides in those characteristics that individuals bring to mediation, such as communication skill, resilience and self-assurance (see Wade 1994 and Kelly 1995 for their applications of Mayer’s typology to the dynamics of family disputes and to family mediation respectively).2 A  consideration of what factors make up any assessment of bargaining power in the context of family disputes must include some or all of the following: financial and material circumstances; legal ‘endowments’ – for example, legal rulings in relation to children and property; emotional vulnerability; de facto residence of the children; presence of new partners; personal attributes; readiness and willingness to negotiate; access to legal 142

Early power critiques of mediation and other advice and support, including access to legal aid; and family history (eg, poverty, mental health issues and particularly domestic abuse as a feature of family life). Furthermore, the perceptions of each party of their predicament must be taken into account. It is not uncommon for each party to feel that he or she is the more vulnerable and to see the former partner as all-powerful, whatever the objective circumstances. Bargaining power involves, therefore, a complex and subtle interplay of forces and influences, objective and subjective, perceived or otherwise. Nor are situations static. The decision to separate can bring about a radical shift in the balance of power, psychologically, financially and in relation to the children. The situation may change over time – an early desire to reach agreement and/or guilt over initiating the breakup may bring about the subsequent realisation of having compromised too much, too soon (Gulbrandsen et al 2018). Yet rarely are the advantages or disadvantages stacked all one way; nor should it be assumed that where one party has superior ‘endowments’ of one sort or another, power will necessarily be used, let alone exploited. However, it is well recognised that for mediation to be effective and fair, there needs to be relative equality of bargaining power between the parties.3 When there is a situation of manifest inequality, resorting to mediation could be not only inappropriate and unethical, but also, in extreme situations, dangerous – for example, where there has been domestic abuse.

Early power critiques of mediation Two broad critiques of the growth of ADR processes in the US drew attention to the risks arising from power differentials in informal processes. The first highlighted what was argued to be the covert extension rather than the reduction of the ambit of state power that state sponsorship of informal institutions such as neighbourhood justice and community mediation schemes represented – ‘the velvet glove has largely hidden the iron fist’ (Abel 1982: 270). The rhetoric of consensus, it was argued, only concealed coercion and conflict, and the disadvantaged were left worse off than they would have fared under an adversarial judicial system buttressed by the procedural safeguards associated with formal adjudication. Another early powerful attack on informal processes of dispute resolution was based on the argument that ‘settlement’ in itself underlined disparities of power between disputants and in particular fundamental disparities of financial resources (Fiss 1984). The poorer disputant would be forced to settle largely because of the costs of litigation and would therefore be disadvantaged further. Such concern about the impact of power imbalances on individual litigants was premised on the importance attached to courts not only for their role in resolving disputes, but also for the vital role they 143

The meaning of power in family mediation: new forms and functions played in the judicial affirmation of important public values (ibid). As Roberts and Palmer (2005: 59) summarise the Fiss argument: ‘The centrality of adjudication is reasserted by presenting judgment as the means through which the core repertoire of norms of society is publicised and refurbished. With the substitution of settlement, the opportunity for the courts to articulate central values is lost, and as these values fall from public attention the stability of the polity is compromised.’ Roberts and Palmer further chart the manifold ways in which, over the past three and more decades, the distinctive culture of public disputing – characterised by its entrenched reliance on litigation and the courts – has undergone a transformation towards the ‘new world’, at the heart of which ‘lies a burgeoning culture and ideology of settlement’ (ibid: 3). Notwithstanding this major shift away from the pervasive legal and judicial bias that conditioned thinking about dispute resolution in Western society, it is well recognised that there can be no fudging of the adjudicative responsibility where there are issues of importance to be determined, particularly in situations where safety, urgency and matters of public significance are at stake.

Neutrality, impartiality and power Maintaining an intermediate position between the disputants is considered to be one of the most essential attributes of the good mediator, who must always be above suspicion of showing any bias for or against one or other party. The ‘non-partisanship’ required of mediation can manifest, according to Simmel, either when the mediator: ‘stands above contrasting interests and opinions and is actually not concerned with them, or if he (sic) is equally concerned with both… The idea is that the non-partisan is not attached by personal interest to the objective aspects of either party position. Rather, both come to be weighed by him as by a pure, impersonal intellect; without touching the subjective sphere. But the mediator must be subjectively interested in the persons or groups themselves who exemplify the contents of the quarrel which to him are merely theoretical, since otherwise he would not take over his function. It is, therefore, as if subjective interest set in motion a purely objective mechanism. It is the fusion of personal distance from the objective significance of the quarrel with personal interest in its subjective significance which characterizes the non-partisan position. The position is the more perfect, the more distinctly each of these two elements is developed and the more harmoniously, in its very differentiation, each co-operates with the other’ (1908; 1950: 149–50, emphasis added). 144

Neutrality, impartiality and power The difficulty of achieving this complicated stance – that of maintaining an intermediate position between disputants, subjectively and objectively – is recognised to constitute one of the principal sources of tension in the mediator role, particularly in the context of situations of high conflict and emotional stress and distress that typify those disputes brought to family mediation.4 The mediator must prevent head-on collision between forces advancing in opposite directions in an unobtrusive, minimal yet authoritative way, providing protection and support to one or both parties whenever necessary. This non-partisan approach is therefore essential to the achievement of the trust that the parties must have in the mediator if that intervention is to be effective. While the concept of neutrality has been used in the literature of ADR as an umbrella concept – for example, the term ‘third-party neutral’ has been used to refer to the general non-aligned, non-partisan stance of the mediator or arbitrator – its more complex implications and applications also emerge. In the context of international disputes, Princen draws a distinction between what he labels the ‘principal mediator’ and the ‘neutral mediator’ (1992: 27): ‘This distinction appears more useful analytically than those that equate the two or that simply claim intermediaries are impartial and neutral or that the intermediaries are never impartial or neutral’ (ibid 63). These two different ideal types of mediatory intervention can be identified by their specific characteristics and distinctive advantages in the international context: ‘principal’ mediators who have clout and their own power-based interests in the dispute (direct or indirect, national or regional – for example, former President Jimmy Carter mediating between Egypt and Israel at Camp David in 1977); and ‘neutral’ mediators whose very lack of power affords opportunities for demonstrating their neutrality and building trust by creating ‘realistic’ empathy’ through direct interaction. While ‘neutral’ mediators may have no interests in the issues between the parties, this does not mean they have no interests in the dispute or might not be subject to other influences such as their religious values (eg, Quaker, Buddhist or Christian pacifist): ‘They may want to see agreement reached, peace realized, of efficiencies gained. They may want to improve their self-images or burnish their reputations as peacemakers or elder statesmen. They may have religious or philosophical reasons for involving themselves. They may be just looking for something to do. Whatever the case, neutral mediators have interests, but they lie outside the issues in dispute, and, therefore, are not subject to bargaining with the disputants’ (ibid 49 –50). While Princen distinguishes between two fundamentally different kinds of mediatory intervention in the international arena, the importance of clarifying the distinction between neutrality and impartiality is essential 145

The meaning of power in family mediation: new forms and functions to avoid the problems arising from the complex implications of realising the non-partisan stance in the context of family mediation practice.5 The first problem is one of accuracy as it is acknowledged that mediators are not neutral, inevitably having their own values, views, feelings, prejudices and interests. The second problem is that claims to neutrality can overstate what is possible, laying the mediator open to legitimate challenge. The third problem is that such claims could be dangerous if asserted in situations of manifest inequality, such as domestic abuse (Haynes 1981). Realising impartiality in practice requires the mediator to demonstrate even-handedness in relation to both the management of the negotiations and the objectives of the parties, while keeping a clear focus on the wellbeing and interests of the children. Maintaining an intermediate position between the parties is fundamental to avoiding the risk of taking sides (and of being perceived to take sides), to demonstrating respect for each participant’s meanings and objectives, and therefore to gaining their trust (Davis and Roberts 1988). Given the inextricable relationship that exists between the relative power endowments of the parties, the exercise of impartiality by the mediator and the objective of achieving fairness of participation and outcome, a crucial and constant requirement of good practice is that inequalities between the negotiating parties need to be recognised, particularly by the parties themselves (rarely a simple matter given the complexities and vulnerabilities of family conflict),6 and made explicit (Folberg 1983): ‘As far as possible, negotiators should be aware of, and able to describe, the various sources of power which may influence negotiations. The very act of describing a source of power or perceived power (depending upon the manner of description) is a source of power and may assist in developing the strategies to respond constructively to that power’ (Wade 1994: 40). With regard to success in family mediation, research highlights the importance of raising awareness of and making explicit, emotional and interpersonal sources of conflict in family disputes which can affect the balance of power and inhibit the chances of constructive discussion (Gulbrandsen et al 2018). Impartiality can be protected in a number of ways in family mediation7 – particularly by the mediator ensuring both that gender, sexual, cultural, religious, ethnic or racial dimensions do not discriminate against or disadvantage one or both parties, and that the structural framework that informs the model of practice protects fairness and avoids, for example, ‘negative positioning’ (Cobb and Rifkin 1991; Eckhoff 1969). The balance of power between the parties is affected by the mediation process itself – first, in the expectations of equality of exchange, equity and mutual responsibility that it engenders; and second, in the improved 146

Theory, practice and power capacity of the parties, as a result of mediation, to deal with one another on an equal (or more equal) basis in the future and be better equipped to cooperate with one another in their parental capacity. The mediator has an ethical responsibility too, to ensure that differences of ‘endowment’ or ability in negotiation do not result in overreaching or duress, terminating the process when necessary in situations of impracticability and unfairness. The less equal the relative power of the parties, the greater the ethical responsibility of the intervenor (Cormick 1982). Whatever form of ‘non-partisanship’ or non-alignment is adopted, whether consisting in either equal distance or equal closeness, the achievement of impartiality constitutes one of the greatest challenges to the effective practice of mediation. This is so particularly in family mediation, where officially endorsed principles of ‘what is best for the child’, embedded in developmental psychology and the law, coincide with the views of one parent – for example, a child’s need for stability and reliability, or for the right to have a relationship with both parents where that is safe. The realisation of impartiality in practice therefore requires that there be congruence between the processual phases of mediation, the structural model of mediation that best realises the progression of that process, the procedural safeguards in place and the mediator’s intervention strategies and their timing. Maintaining an impartial presence thus manifests not only as an aspirational commitment to a fundamental principle of mediation, but also as a professional attribute, a practice skill and the ethical duty of the practitioner (Roberts, M 2007).

Theory, practice and power The relationship between the theory and the practice of mediation has been perceived, historically, to be one that has been restricted, if not problematic – with exchanges between the two relatively rare and with limited impact (Rifkin 1994). While the interests of researchers and practitioners do not necessarily coincide, common understanding is essential if practitioners are to be informed by reputable research and if researchers are to be trusted by practitioners. As the ADR field is acknowledged to be an ‘experiential’ field exemplifying the concepts and practices of the ‘theories-in-use’ school in the development of professional education, good practice and the reflections of experienced practitioners are recognised to constitute an important component of ‘grounded theory’ (Schon 1983; Menkel-Meadow et al 2005).8 A  large body of work exists, for example, to illustrate that mediators themselves, rather than claiming theirs to be a ‘purely neutral activity’ (as asserted by Greatbatch and Dingwall 1990: 53) acknowledge the complex and subtle ways in which influence can be exerted within the process (Deutsch 1973; Pruitt 1981; Rubin and Brown 1975; Stulberg 1981). 147

The meaning of power in family mediation: new forms and functions It is well recognised, for example, that the minimal numerical transformation that occurs in mediation, of the dyad into the triad, can have radical, complex and paradoxical effects – intellectual, social, psychological and negotiation effects. The presence of the third party qualitatively transforms the interaction. Merely by being there, the mediator alters the relationship between the parties and exerts influence: ‘I  contributed nothing but my presence’ (Meyer 1950: 6). In addition, the third party in any dispute resolution process – not only mediation – transforms the interaction in another important respect, by embodying the principle of objectivity and reasonableness in decision making: ‘the non-partisan tempers the passion of others’ (Simmel 1955: 152). In representing the principle of objectivity and reasonableness, the transformation occurs in this way: ‘The diminution of this personal tone is the condition under which the understanding and reconciliation of the adversaries can be attained, particularly because it is only under this condition that each of the two parties actually realizes what the other must insist upon. To put it psychologically, antagonism of the will is reduced to intellectual antagonism….no matter in what form the conflict enters from one side, it is transmitted to the other only in an objective form’ (ibid: 148). Merely by being there, the mediator requires the parties to confront the issues and generates pressure towards coordination. Implicit in the encounter are expectations of rational behaviour. People want to look good in the eyes of a third party. In this way, mediation itself consists of influencing the parties to come to an agreement (Eckhoff 1969). A rich source of theory has generated fresh intellectual and experiential insights on concerns that claims to neutrality conceal the operation of power in mediation (Cobb and Rifkin 1991; Wade 1994; Field 1996; Astor 2007). In the context of commercial mediation, Chornenki challenges the conventional idea of power in mediation as an undesirable and inevitable ingredient, ‘a phenomenon to be controlled’ by the mediator in the attempt: ‘to strike a balance between the negotiators’ total power positions… Doing so lowers the probability the stronger negotiator will attempt to exploit the weaker and that the weaker will abandon the relationship or seek to undermine the stronger’s position. To strike the balance, the mediator provides the necessary power underpinnings to the weaker negotiator… or reduces those of the stronger. If he cannot balance the power relationship, the mediator can bargain with or use his power against the stronger negotiator to constrain the exercise of his power’ (1997: 163). Chornenki introduces the concept of ‘power-with’ to replace that of ‘power-over’: 148

Theory, practice and power ‘In practice, interest-based mediation takes the emphasis off power as influence or control and places it on a different kind of capability, that of the “collective”. It is the voluntary joining together of parties in the pursuit of a joint problem-solving exercise rather than their successful domination of another that is at the heart of interest-based mediation’s true “promise”. When such joint efforts take place, the parties do exercise power, but not as influence and control. Instead, they are engaged in the power of the collective, here referred to as “power-with”’ (ibid: 164). Chornenki ‘s adumbration of ‘power-with’ does not negate power as a force of influence or control; rather, it recognises that this involves the mediator in a collaborative enterprise with the parties, whose task is therefore ‘so much larger and more complex than exercising or responding to conventional power’ (ibid: 165). In the context of family mediation, Astor too both highlights the limits of the view of power as a commodity to be balanced or as a problem necessarily negative and coercive, and underscores the more complex and fluid dynamics and sources of power in mediation (Astor 2005). She articulates an alternative approach to ensuring that the claim to mediator neutrality – ‘the voice from nowhere’ – does not conceal or replicate the operation of power in mediation (ibid: 228). This is an approach that requires acknowledgement of the inevitable ‘situatedness’ of mediators; that requires that attention be paid to power relationships; that involves being open to and to valuing other perspectives – ‘seeing things simultaneously yet differently’ – especially the viewpoints of those from non-dominant groups (eg, same-sex couples);9 that engages the mediator in self-reflexive understanding; and that requires there to be what she terms ‘situated’ practice that demonstrates reflexivity and empathy and which has, as its core value, respect for the consensuality of decisionmaking by the parties in order to maximise party control (ibid:  231; see also Lisa Webley in this volume). Such practice would address ‘the impossible requirement of neutrality’ and would embed mediation in the ideals of fairness and justice (ibid: 235). Similarly, Bush argues for an expanded conception of the obligation of mediator impartiality, one that gives positive meaning to being ‘pushy’: ‘What I  mean by impartiality, however, goes beyond the usual connotation of disclosure of conflicts and neutrality regarding outcome… Mediators should be visibly even-handed or twosided in their pushing. In other words, they should direct their invitations, support, encouragements, challenges and urgings towards each party in turn, and each should see clearly that the other is receiving similar treatment. If necessary, mediators should explicitly assure the parties that they intend to behave identically toward each side, and of course, they should always fulfil this assurance. Mediators whose pushing is positive in character, and 149

The meaning of power in family mediation: new forms and functions who adhere to the requirement of active impartiality, can serve for each side as translator to the other and also serve each side as devil’s advocate for the other… without ever losing the trust and confidence of both sides’ (Bush 1989: 281–82).

Mediator authority and power Discussion so far has focused on the issue of power between the parties. The mediator has a responsibility to understand the nature of his or her own authority and his or her own power, and the difference between them. The authority of the mediator derives from a tacit understanding between the parties and the mediator. The parties consent to participate with the mediator in the mediation process. The mediator is there only with the permission of the parties. To the extent that they are aware of their right not to participate if they so choose, the parties retain ultimate control. The attributes and skills of the mediator in promoting communication and assisting decision making constitute a second source of authority. The mediator’s authority may also derive as much from the urgency of the situation as from any special expertise – ‘from the simple fact that he (sic) is there and that his help is badly needed’ (Fuller 1971: 315). The task of the mediator is to be able to exercise his or her authority in order to realise the two core features that distinguish the mediator role across cultures – to remain unaligned in respect of the parties and non-determinative in respect of the outcome. The main functions of the mediator have been identified as catalyst and facilitator (Deutsch 1973; Rubin and Brown 1975; Gulliver 1979: Pruitt 1981; Stulberg 1981). These represent the prototype of the disinterested intervener whose selfconsciously limited role is confined to responsibility for orchestrating an effective process in order for the parties to reach their own consensual decisions on the substance of the issues that divide them. Mediators in all fields, but in family mediation in particular, can risk exceeding their legitimate authority through manipulating the course of the negotiations as well as the substantive issues in dispute in ways that place parties under unacceptable pressures to act or fail to act in ways they would not otherwise have done (Gulliver 1979). So mediators need to face squarely their potential to affect the substance of communication by their control over the process of that communication (Silbey and Merry 1986). Possibilities exist at every stage of intervention for the mediator to exert positive influence – in the kind of model of practice adopted (eg, for a model where structural safeguards for fairness are foregrounded, see Roberts, M  2015); in the level and strength of their intervention, from the most minimal to the most dominant or directive (the greater the strength of their intervention, the greater its manipulative potential); in their management of the quality and quantity of communication exchanges (eg, in reformulating or rephrasing, adding and editing); and in their avoidance of the importation of assumptions 150

The special case of domestic abuse and strategies derived from other professional interventions also operating in the context of family breakdown (eg, in the resort to psychological interpretation, therapeutic reframing and ‘treatment’ techniques, or welfare and legal evaluations). Where the core principles of mediation are not protected – where there has been no voluntary informed consent to participate, where mediation takes place in the coercive context of the court or where court officers act as mediators – the parties are exposed inevitably to unsatisfactory pressures (Grillo 1991; Genn et al 2007). It is necessary to acknowledge too that disputants may be by no means passive recipients of the mediator’s interventions and that, for mediation to be effective, the characteristics they themselves bring to the process are highly relevant. These include their commitment and good faith in participating (precisely because of the absence of compulsion); their continuing capacity to participate effectively (necessitating, in addition to pre-mediation screening for suitability, continuing screening for new manifestations of power imbalances and abuse and emotional, mental and physical vulnerabilities); and their own potential to manipulate and exploit the mediation process strategically for personal gain or to advance adversarial goals in the course of legal proceedings (Gulliver 1977).10

The special case of domestic abuse Domestic abuse highlights concerns about fairness and power, in its starkest form, in all dispute resolution processes, but in family mediation in particular, where the safeguards of due process do not apply and where there is always the danger that more powerful interests could prevail over the weaker. Domestic abuse in mediation therefore requires a focus on the extreme manifestation of the issue of power, and consequently of ensuring that the necessary safeguards are in place to protect both the public and the integrity of the mediation process – safeguards of principle, training, structure and procedures, and practice. Safety concerns encompass not only those who participate directly in family mediation, but also third persons – that is, those affected by the process, children in particular. Where there is a situation of manifest inequality between the parties, particularly one associated with domestic abuse (as widely defined),11 resort to mediation could be not only inappropriate, but also potentially dangerous for the abused party and/or his or her children. Research findings in the UK, North America and Australia unanimously affirm the necessity for credible pre-mediation screening for suitability for mediation in respect of the parties, the dispute and all the circumstances (Thoennes and Pearson 1995; Field 1996; Hester and Pearson 1993; Keys Young 1996; Hester et al 2007).12 Each party, whether or not there is disclosure, needs to understand the rationale underpinning the purpose of screening for domestic abuse – namely, to establish their capacity to engage voluntarily, equally and freely and frankly in exchanges and 151

The meaning of power in family mediation: new forms and functions in decision making in order for there to be effective participation in the mediation process. Research also identifies the need for facilities and practice models that maximise safety in terms of separate waiting rooms; the use of ‘shuttle’ mediation where appropriate (where the parties cannot or will not sit in the same room so that the mediator ‘shuttles’ between their separate spaces); co-mediation where necessary; dealing with nonagreement; and safe termination and departure.13 The mediator has a fundamental ethical responsibility to end the mediation session where it appears that unfairness would result because of the exercise of duress by one party over another, or where cultural or other circumstances deny a party the capacity to negotiate in his or her own right at all.

New manifestations of power in family mediation Several recent developments in the context of family justice in the UK confirm a growing trend that increases the risk both of distorting legitimate mediator authority and of undue power being exerted in family mediation. This is a trend that threatens, in addition, the status of mediation as a distinctive process of dispute resolution with its own safeguards of principle and practice. These developments include severe cutbacks in legal aid and the tightening of eligibility requirements for legal aid which have resulted in the denial of access to justice to many family disputants (see the Legal Aid, Sentencing and Punishment of Offenders Act 2012). At the same time, official promotion of family mediation (for which legal aid is protected) as the preferred default process in private law cases in the family justice system has brought with it an increase in referrals of unsuitable cases to mediation. These include domestic abuse cases where it can be difficult to evidence the more covert forms of controlling and coercive abuse for which, in theory, legal aid for legal representation in family proceedings continues to be available (Ap Cynan 2013; Morris 2013). Furthermore, as increasing numbers of family lawyers (both solicitors and barristers) train to be mediators, worrying pressures are being exerted that confuse the separate roles of lawyers and mediators and result in hybrid forms of practice (Maclean 2014). Masking rather than clarifying critical distinctions of role and function risks damaging both legal competence and accountability, as well as the integrity of mediation as a discrete and independent professional intervention. As was noted decades ago, ‘To link family mediation to the world of the law will arguably sap the vitality of both’ (Roberts, S 1983: 555). Some ‘lawyer’ mediators endorse the practice of what is called ‘evaluative’ mediation – a directive, advisory approach more in keeping with their 152

New manifestations of power in family mediation customary legal role and with which they are inevitably associated in the minds of the disputants. ‘Evaluative’ mediation combines features of mediation, advice giving and arbitration, conflating three analytically distinct and contradictory roles.14 This is an approach that is primarily focused on disposing of the legal issues in dispute at the expense of those non-justiciable issues that are frequently of primary significance to the parties and which could be essential to any resolution of their dispute – such as ethical, practical, personal and communication concerns. Another hybrid form of intervention, ‘med-arb’ – the combination of mediation and arbitration – increases the risk of both the direct and the indirect exercise of coercive power: ‘Because mediation is voluntary and the mediator serves the parties, he or she usually has few direct coercive techniques available to influence disputants. Exceptions include… interveners practicing med-arb, a mediation-arbitration hybrid in which the parties agree to allow the intervener to mediate until an impasse occurs, at which time the mediator becomes an arbiter and decides the conflict’s outcome…’ (Wade 1994, quoting Moore: note 2, 227). Where family mediators are recommended to practise a variant of ‘child-inclusive mediation’ that incorporates in the mediator role the combination of a wide range of different professional tasks (involving clinical psychological and therapeutic expertise associated with the functions of child assessment, welfare investigation, family therapy, counselling and advocacy), the role of the mediator becomes not only seriously misunderstood, but distorted and hybridised. This is a recommendation in a Final Report15 published by an advisory group of the Ministry of Justice in 2015 that re-defines the mediator both as a ‘child professional’ and as a ‘family law professional’, thereby creating terminology confusion as well as blurring significant professional boundaries. In this way, the status of mediation as a discrete and autonomous dispute resolution process is inevitably compromised. In this way too the power of the family mediator is increased covertly, not only by the importation into mediation practice of the different assumptions and techniques of welfare investigation and family therapy, but also in a manner that changes the nature of the mediator’s intervention without the parties’ knowledge or consent (Roberts, M 2015). Serious concerns also arise from the current situation in this country that finds many inexperienced trainee family mediators lacking sufficient apprenticeship and practice opportunities. More worrying is the fact that there are those, claiming to be family mediators, who practise privately outside the remit of the existing professional regulatory framework.16 Where there is inadequate pre-mediation screening for suitability and where unregulated family mediation practice could be unethical and 153

The meaning of power in family mediation: new forms and functions even dangerous, the public and the credibility of the family mediation profession are at risk.

Conclusion Awareness of the complexities of the operation of power in mediation, and family mediation in particular, is necessary if this method of dispute resolution is to be fair, effective and beneficial for those who choose to participate. Strict adherence to the cardinal principles of mediation, of voluntary participation, of confidentiality and of impartiality in particular, is essential because, designed to safeguard fairness, these principles make this a method of dispute resolution of value to disputants. Respect for both the parties’ authority to make their own decisions and their willingness to collaborate in a consensual process of joint decision making distinguishes mediation as a unique dispute resolution process. If, therefore, family mediation can provide parties with a calm and safe opportunity to improve their means of communication and negotiate a mutually agreed and fair resolution of their differences, in their own interests and especially those of their children, it fulfils its lofty yet modest objectives.

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Endnotes

Endnotes 1 The focus of this chapter will be primarily on disputes arising from the breakdown of heterosexual relationships, as these reflect the author’s predominant family mediation practice experience. See Maria Moscati’s chapter for the discussion of power issues arising in respect of the breakdown of non-heteronormative couples. 2 See also Wade (1994) for a comprehensive analysis of categories of power. 3 Disparity of bargaining power is not, of itself, a ground for the court to set aside a private agreement if there has been no unfair exploitation of superior bargaining strength and both parties have had the benefit of professional advice (Edgar v Edgar 1980). 4 Kressel (1985: 203) highlights the inherent tension of the mediator role, which derives from three principal and inter-related sources: the ‘lofty and at times contradictory and ambiguous demands of the role itself’; the intermediate position the mediator occupies between the two parties; and the objectively difficult circumstances in which the negotiations typically occur. 5 Neutrality can be claimed by the mediator only in affirming no vested interest in any particular outcome and no personal or financial connection with any of the parties or with any government or other relevant institution. Neutrality can be claimed too only in respect of the location of the provision of mediation as an independent practice, one free from stigma, coercion (eg, court premises) or confusion with other forms of intervention (eg, therapy, welfare investigation or legal practice). 6 For research that highlights the two central disparities inherent in situations of family breakdown – emotional inequality (who took the decision to end the relationship and to what extent the decision was accepted) and where the children are living – see Chin-AFat and Steketee (2001). 7 For example, in giving due weight to each party’s views and objectives; in ensuring that inequalities are recognised by the parties themselves; in making sure all the relevant information is in the hands of both parties; in ensuring free and equal participation in the process of negotiation and in decision making; in avoiding any expression of views that coincide with that of one party; and in avoiding pronouncing on the merits of either party’s position or expressing a preference for any particular outcome. 8 For a project that entails an explicit commitment to engage with practitioners in order to disseminate the fruits of mediation research findings, see Stokoe (2013). 9 This approach endorses that of Cobb (1993), who argued that mediators should assist in the construction of ‘positive positions’ for all participants so that no dominant, usually first, narrative prevails at the expense of others that were less coherent or negatively defined. 10 Research indicates that an ‘instrumentalist’ approach to mediation is more likely to occur where mediation is mandatory and court-connected (eg, see Macfarlane (2002)). 11 ‘Domestic abuse’, rather than ‘domestic violence’, is the preferred term because it better reflects, in addition to physical violence, the range of behaviours that can make up intimidatory, oppressive, controlling or coercive behaviour – such as economic, financial sexual, psychological, verbal and social abuse. See College of Mediators Domestic Abuse Screening Policy (2006). Practice Direction 12J October 2017 replaces the terminology of ‘domestic violence’ with ‘domestic abuse’, displaces the ‘presumption of contact’ with a non-resident parent and requires domestic abuse to be taken more seriously by the courts in the context of determining child arrangements. 12 See Chapter 16 on the interview with Tony Whatling about best practice relating to domestic abuse. 13 The College of Mediators’ Domestic Abuse Screening Policy (2006), which governs family mediation practice in the UK, includes the following policy and practice requirements: each party needs to make a fully informed decision as to whether mediation is suitable and therefore need both significant information and sufficient time; the decision must be a voluntary one; separate screening of each party is essential; all safety issues must be considered, including a consideration of the impact on third persons such as children; screening must continue throughout mediation, which requires that there be separate time each party allocated at the start of each session. 14 For a fuller exploration of this subject see Roberts, M (2016). 15 For all the recommendations see the Final Report of the Ministry of Justice Voice of the Child Dispute Resolution Advisory Group, March (2015). 16 See the Family Mediation Council and the College of Mediators.

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References Field, RM  (1996) ‘Mediation and the Art of Power (Im)Balancing’ Queensland University of Technology Law Journal, Vol 12 264–73. Fine, C (2018) Testosterone Rex: Unmaking The Myths of Our Gendered Minds (London: Icon). Fiss, OM (1984) ‘Against settlement’, Yale Law Journal, Vol 93 1073–90. Folberg, J  (1983) ‘Divorce mediation – promises and problems’, paper prepared for midwinter meeting of American Bar Association Section on Family Law, St Thomas. Foucault, M and Deleuze, G, Transcript of a conversation in 1972, published in English in Bouchard, Donald F (ed) (1977) Language, Counter-Memory, Practice: selected essays and interviews by Michel Foucault (New York: Cornell University Press). Fuller, L (1971) ‘Mediation: its Forms and Functions’, Southern California Law Review, Vol 44 305–39. Genn, H  et al (2007) ‘Twisting arms: Court referred and court linked mediation under judicial pressure’, Ministry of Justice Research Series 1/07 May. Gilligan, C (1982) In a Different Voice (Cambridge MA: Harvard University Press). Greatbatch, D  and Dingwall, R  (1990) ‘Selective Facilitation: Some Preliminary Observations on a Strategy used by Divorce Mediators’, Family Court Review, Vol 28 Issue 1 53–64. Grillo, T (1991) ‘The mediation alternative: Process dangers for women’, Yale Law Journal, Vol 100 Issue 6 1545–640. Gulbrandsen, W, Haavind, H, Tjersland, OA (2018) ‘High conflict parents in mediation: An Analysis of dialogues and sources to conflict’, Conflict Resolution Quarterly, Vol 35 Issue 4 335–49. Gulliver, PH (1977) ‘On mediators’, in Hamnett, I (ed) Social Anthropology and Law (London: Academic Press). Gulliver, PH (1979) Disputes and Negotiations: A Cross-Cultural Perspective (New York: Academic Press). Haynes, J (1981) Divorce Mediation: A Practical Guide for Therapists and Counsellors (New York: Springer). Hester, M and Pearson, C (1993) ‘Domestic violence, mediation and child contact arrangements’, Family Mediation Vol 3 Issue 2 3–6. 157

The meaning of power in family mediation: new forms and functions Hester, M et al (2007) Making an Impact: Children and Domestic Violence (London and Philadelphia: Jessica Kingsley Publishers). Ingleby, R (1993) ‘Court sponsored mediation: The case against mandatory participation’, Modern Law Review Vol 56 441–51. Kelly, JB (1995) ‘Power imbalances in divorce and interpersonal mediation assessment and intervention’, Mediation Quarterly, Vol 13 Issue 2 85–98. Keys Young (1996) Research Evaluation of Family Mediation Practice and the Issue of Violence (NSW: Attorney General’s Department). Kressel, K (1985) The Process of Divorce (New York: Basic Books). Macfarlane, J (2002) ‘Culture change? A tale of two cities and mandatory court-connected mediation’, Journal of Dispute Resolution, Vol 2002 Issue 2 241–325. Maclean, M  (2014) ‘The changing professional landscape’, Family Law, Vol 14 198–201. Mather, L, Maiman, RJ and McEwen, CA (1995) ‘The passenger decides on the destination and I decide on the route: Are divorce lawyer expensive cab drivers?’ International Journal of Law and the Family, Vol 9 286–310. Mayer, B (1987) ‘The dynamics of power in mediation and negotiation’, Conflict Resolution Quarterly, Vol 12 75–86. Mayer, B (2000) The Dynamics of Conflict Resolution: A Practitioner’s Guide (San Francisco: Jossey-Bass). Menkel-Meadow, C  (1985) ‘Portia in a different voice: Speculation on a women’s lawyering process’, Berkeley Women’s Law Journal, Vol 1 39–63. Menkel-Meadow, C et al (2005) Dispute Resolution: Beyond the Adversarial Model (New York: Aspen Publishers). Meyer, AS (1950) ‘Some thoughts about mediation’, mimeographed paper. Ministry of Justice (2015) Final Report on the Voice of the Child in Dispute Resolution Advisory Group. Mnookin, RH (1984) ‘Divorce bargaining: The limits on private ordering’ in Eekelaar, J  and Katz, SN (eds) The Resolution of Family Conflict: Comparative Legal Perspectives (Toronto: Butterworths). Moore, C (1996) The Mediation Process: Practical Strategies for Resolving Conflict (2nd ed) (San Francisco: Jossey-Bass). 158

References Morris, P (2013) ‘Mediation, the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 and the Mediation Information and Assessment Meeting’, Journal of Social Welfare and Family Law, Vol 35 Issue 4 445–57. Morrow, V (1998) Understanding Families: Children’s Perspectives (London: National Children’s Bureau). Moscati, MF  (2015) (ed) Same Sex couples and Mediation in the EU (London: Wildy, Simmonds and Hill). Moscati, MF  (2015) Same-Sex Couples and Mediation: A  Practical Handbook, www.sussex.ac.uk/profiles/355203/ publications. Princen, T (1992) Intermediaries in International Conflict (Princeton: Princeton University Press). Pruitt, DG (1981) Negotiation Behaviour (New York: Academic Press). Rifkin, J (1994) ‘The practitioner’s dilemma’ in Folger, JP and Jones, TS (eds) New Directions in Mediation (London: Sage). Roberts, M  (2007) Developing the Craft of Mediation: Reflections on Theory and Practice (London and Philadelphia: Jessica Kingsley Publishers). Roberts, M  (2015) ‘Hearing Both Sides: Structural safeguards for protecting fairness in family mediation’, Family Law Vol 45 718–26. Roberts, M  (2015) ‘Children and mediation: a response to the Ministry of Justice Report on the Voice of the Child in Dispute Resolution’, Family Law, Vol 45 1531–36. Roberts, M  (2016) ‘Interdisciplinary Influences on Family Mediation’, Mediation Theory and Practice Vol 1 Issue 2 211–31. Roberts, S  (1983) ‘Mediation in Family Disputes’, Modern Law Review Vol 46 Issue 5 537–57. Roberts, S and Palmer, M (2005) Dispute Processes (Cambridge University Press). Rose, P (1985): Parallel Lives (Harmondsworth: King Penguin). Rubin, JZ and Brown, BR (1975) The Social Psychology of Bargaining and Negotiation (New York: Academic Press). Schön, DA (1983) The Reflective Practitioner: How Professionals Think in Action (New York: Basic Books). Seidenberg, R  (1973) Marriage between Equals: Studies from Life and Literature (New York: Double Day Anchor Press). 159

The meaning of power in family mediation: new forms and functions Silbey, SS and Merry, S (1986) ‘Mediator settlement strategies’, Law and Policy, Vol 8 Issue 1 7–32. Simmel, G (1908) The Sociology of Georg Simmel, KH Wolff (1950) (New York: Free Press). Stokoe, E  (2013) ‘Overcoming barriers to mediation in intake calls to services: Research-based strategies for mediators’, Negotiation Journal, Vol 29 Issue 3 289–314. Stulberg, J  (1981) ‘The theory and practice of mediation: A  reply to Professor Susskind’, reprinted in Goldberg, SB, Green, ED and Sander, FEA (eds) Dispute Resolution (Boston and Toronto: Little, Brown). Tannen, D  (1990) You Just Don’t Understand: Women and Men in Conversation (New York: Morrow). Tannen, D (1998) The Argument Culture: Moving from Debate to Dialogue (New York: Random House). Thoennes, NA and Pearson, J  (1995) ‘Predicting outcomes in divorce mediation: the influence of people and process’, Journal of Social Issues, Vol 41 Issue 2 115–26. Williams, JC  (1989) ‘Deconstructing gender’, Michigan Law Review, Vol 87 797–845. Wade, JH (1994) ‘Forms of Power in Family Mediation and Negotiation’, Australian Journal of Family Law, Vol 8 Issue 1 40–57. Woolf Lord(1996) Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: HMSO).

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Chapter 9

 hose truth is it anyway? An W imaginative reflection on the place of truthin family mediation Neil Robinson

‘When my love swears that she is made of truth, I do believe her, though I know she lies, That she might think me some untutored youth, Unlearnèd in the world’s false subtleties. ………Therefore I lie with her and she with me, And in our faults by lies we flattered be.’1

Why might truth matter to mediators and their clients? ‘Truth’ and ‘lies’ have a fresh resonance in a world of tweet-sized messaging, fake news, devaluation of expertise and polarisation of binary positions. Truth is rarely pure and seldom simple; our much-prized legal system requires witnesses to ‘tell all the truth and nothing but the truth’, but places their testimonies in a binary adversarial contest that is particularly unsuited to family quarrels, where perceptions of truth and lies are so often centre stage.2 The managed conversation of family mediation is an intervention that may be best suited to manage these ‘truth conflicts’. Yet mediators often find themselves dealing with the language of truth and falsehood at an explicit, superficial level; deeper ‘truths’ may be lost in the recriminations of those who are emotionally unready to engage in constructive dialogue. The challenge is to find a reconciliation between the binary and the complex; between that which is perceived as objective and that which is experienced subjectively. If truth is relative and always viewed through the lens of relationship, then it may be within the managed conversation of family mediation that the pathway can most effectively be found from binary to shared truth. The aim of this chapter is therefore to re-view that process of mediation through the framing of contemporary notions of truth, by considering first, how the current climate impacts upon and informs the mediation conversation; second, what others might learn from the example of that mediation; third, how mediators might better assess capacity to engage

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An imaginative reflection on the place of truth in family mediation in mediation effectively through a focus on the relationship with truth; and fourth, what skills and strategies are best able to assist participants in moving from individual unreconciled perceptions of the past to a new shared truth which might inform their future behaviours. It aims to be a ‘conversation piece’ about ‘truth and mediation’; to encourage individual reflection; to raise questions for debate between mediators, and between mediators and other family conflict resolvers; and to suggest strategies and interventions when perceptions of truth become obstacles. This is important because of the significant changes in the climate of truth telling and communication in which family mediation uniquely operates, and because family mediation is by its very nature interconnected with the wider world of human interaction.

Mediation and communication in a global context: the current climate The climate of language and communication in which we operate as mediators is changing. Wherever we look, complex and complicated matters are reduced to simplistic binaries in the context of the resolution of conflict, between ideologies, nations, cultures or fracturing families. Our developing understanding of sexuality, gender and coercive behaviour both informs and polarises. Media, social media and partisan party politics are the tools of the battle, rather than deep, managed conversation. The following examples demonstrate this climate change: • A father walks out of a long and fraught first mediation session and makes a formal complaint about the conduct of one of the co-mediators, who had encouraged him to reflect that ‘truth has many sides’. His expectation had been that the mother of his child would have been ‘honest’, and would have acknowledged ‘all the lies and hurt’ used against him in concluded court proceedings. To someone of his faith, ‘truth is truth’ and ‘any variation of truth is false’.3 • ‘Truth isn’t truth’, according to former New York mayor Rudi Giuliani.4 ‘My Twitter is so powerful that I can even make my enemies tell the truth,’5 claims Donald Trump – raising not only the issue of ‘false truth’ and ‘fake news’, but also the degradation of language and of public and once-private discourse that has come with the social media revolution. Former President George W  Bush makes the connection between the public example and its impact on families: ‘Bullying and prejudice in our public life sets a national tone, provides permission for cruelty and bigotry, and compromises the moral education of our children.’6 • Another ex-President, this time of our own Family Division, confirms that the family justice system within which we work as mediators has been exposed as based on a lie. Munby LJ tells 162

Mediation and communication in a global context: the current climate us, in relation to the existing grounds for divorce, that ‘the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty’.7 While no-fault divorce is finally within sight,8 the primary cause of this ‘dishonesty’ is that family justice remains part of a resolutely adversarial, binary system, where – although participants promise to tell ‘the truth, the whole truth and nothing but the truth’ – truth is actually decided by a war of words between opposing sides.9 One of the biggest issues of our age affecting this country was ‘decided’ by a binary referendum in which truth, facts and the value to be placed on knowledge and expertise were controversial. Its outworking has been through a binary parliamentary process which remains resolutely adversarial and ill-equipped to deal with the complexity of the issues involved. We are experiencing a very visible fracturing of our communities by the simple act of the ‘public vote’, with apparently no attempt to heal that fracture through deep conversation, education or social justice. Whatever our views on that binary issue, almost everyone now has a firm view on the sanctity or otherwise of that 2016 decision; we are divided further by our views on the process as well as the outcome. More positively, negotiation and debate have never been so publicly and so exhaustively anatomised; now we all know about ‘red lines’ and about the implications of crude, populist processes applied to complex issues. This is an analogy within the mediation room that most people can grasp. These are the contexts and climates which frame the attempts in mediation to find common truths for the future. Those who come to mediation inhabit a world of dysfunctional decision-making processes, the abuse of power in relationships and superficial and instant communication. ‘Truth’, ‘lies’, ‘facts’ and ‘fake news’ have become toxic and populist terms in ways we would not have imagined even five years ago. Two truths about truth So what is truth? The old English ‘trˉıewth’ or ‘treˉowth’ means ‘faithfulness’ or ‘constancy’, which may help more than the Oxford English Dictionary’s rather circular definitions of ‘a fact or belief that is accepted as true’ or ‘which is true or in accordance with fact or reality’. These definitions assume an objectivity to truth – something which is provable either by scientific expertise or in a court of law. What might be the mediator’s truth about ‘truth’? In exploring this, I am going to set up my own binary by suggesting two apparently irreconcilable approaches to truth within mediation. On the one hand, truth is discernible, fact and evidence based; black and white. We do a disservice to the victims of abuse to try to reconcile their truth with other perceptions. On the other hand, truth is complex, sophisticated, multi-faceted. 163

An imaginative reflection on the place of truth in family mediation In 1986, Italian scientist and writer Primo Levi, a survivor of the Nazi death camps, reflected on his experience of living with collaborators in the Holocaust. Having acknowledged the impossible dilemmas they faced, he concluded still that to ‘confuse (oppressors) with their victims is a moral disease or an aesthetic affectation or a sinister sign of complicity; above all, it is a service rendered to the negators of truth’ (Levi 1988: 46). That is, when the objective truth of oppression is evident, we are complicit in the abuse if we do not call it out. These ‘grey, ambiguous persons, ready to compromise’ are ‘the vectors and instruments of the system’s guilt’ (Levi 1988: 47). This is the danger inherent in not fully recognising the experience of the victim of oppression or abuse of power; it becomes a greater challenge when the victim’s experience is not acknowledged by the perceived perpetrator in cases where the objective truth is harder to identify, such as cases of alleged coercive control and intimidation. Yet Levi also wrote that ‘the desire for simplification is justified, but it is a working hypothesis, useful so long as it is recognised as such and not mistaken for reality; the greater part of historical and natural phenomena is not simple, or not simple with the simplicity that we would like’ (Levi 1988: 32). This recognition of the complexity of the concept of truth is also explored by Susie Orbach in her book In Therapy.10 She states: ‘Psychoanalysis and psychological theories of development see the capacity to hold complexity in mind – which is to say when thinking is not arranged in banishing binaries – as a hallmark of psychological selfhood… Complexity is essential to thought – there is rarely one story, one subjectivity, one way to look at and evaluate things.’ And again, ‘complex thought and adult behaviour require the acknowledgement that there are almost always multiple, complex truths’.

What might the world learn from mediators about truth? Mediators and their clients are therefore seeking some reconciliation between these two ‘truths about truth’. There is both the objective, factual, discernible truth, which may have to be acknowledged before any progress can be made (see the South African Truth and Reconciliation process, and indeed the complexities wrought by the attempt to reconcile past truth and present/future reconciliation);11 and the complex interweaving of very different perspectives, all of which may be subjectively true and are particularly potent and hard to reconcile at a time of separation, when memories and echoes of the past are so easily skewed by current tensions. The ‘truth’ is that these two concepts of truth are themselves in constant dynamic tension. 164

The truth about abuse Whether in world affairs or in the most intimate of settings, if we get the medium/mode of resolution/decision making wrong, we set up new fractures, new antagonisms, new polarities – perhaps for generations. If we get the medium/mode of communication wrong, we set up arenas for further extreme ferment and hatred. Of all the environments and mechanisms on offer, that which deeply fractured families find in mediation may be the best example we have for the deeper conversation that can bring both effective decision making and communication – which may argue for a more robust engagement and a greater courage to embark and tenacity to continue.12 Those looking to heal wounds and find common ground in our battered democracy might do well to look at how mediation assists families.

The truth about abuse ‘Mediation was just another area to be bullied in.’13 In a public world where ‘truth isn’t truth’, discourse and debate are impoverished and bullying is rife, the mediator has a particularly challenging role in managing different truth narratives in private conflicts where there are competing narratives and allegations about abuse. Mediators must employ a wide range of skills and strategies to ensure effective screening and safety, and constructive outcomes for all family members. The starting point for taking abuse seriously14 is awareness – of incidence, perception, definition, impact – and continuing discussion and conversation with colleagues in allied disciplines.15 Mediators must then provide a safe space and time to explore individual truths. They must screen out – even where ‘survivors’ wish to mediate – in cases where safety cannot be assured. Screening questions that mediators might ask themselves16 may include the following: • Does it matter whether manipulation is conscious or unconscious; whether coercion is deliberate or perceived? • Is the perceived abuse a single act, perhaps ancillary to the act of separation, or ongoing? • Through our framing of truth, is there any potential for shared understanding of what is alleged to have happened and its impact on the family? However, taking abuse seriously also means that mediators must consider ‘including in’ where mediation may provide an emotionally safer environment for building a necessary future relationship. This acknowledges that young people are emotionally harmed by the experience of their parents’ ongoing conflict, and that the most effective way of managing that conflict is likely to be through mediation.17 Mediators 165

An imaginative reflection on the place of truth in family mediation must therefore finally be prepared to modify and expand their models to provide a more ambitious, robust environment for supporting effective cooperation and transformation. It is so easy for any attempt to proceed to go wrong. Consider the following example: two young parents in separate assessment meetings confirm their willingness to attempt mediation in separate rooms in respect of their nine-month-old child. Their relationship was brief and they had separated within weeks of the birth, the baby seeing Dad infrequently in Mum’s home, with both Mum and maternal Grandmother in attendance. Grandmother is unwilling to continue the arrangement; Mum accepts the need for some relationship to continue, but not in the home. She refers to verbal and emotional bullying and coercion throughout the relationship. Dad does not accept this. Two experienced mediators work with them in a single session, the apparently ‘successful’ outcome of which is an agreement to move contact at least temporarily to a contact centre. A few days later, Mum sends her formal complaint: ‘I felt he was trying to continue the abuse in our relationship. I am the victim and you are liable if anything happens to my baby.’ What went wrong? Were the mediators wrong to decide that mediation was appropriate, despite the apparent willingness of the couple? Whose truth are we dealing with anyway here? When the ‘victim’s’ ‘truth’ and the ‘perpetrator’s’ response are irreconcilable, it is reasonable to consider the alternatives available for providing safety or decision. But both criminal and family law are found wanting. Our way of discerning truth in English law is by polarisation, cross-examination and judgement. We might reflect that ‘all warfare is based on deception’.18 In a mediation context, by comparison, how far might progress be made when participants have completely different perspectives of the same incident? In a lengthy separate assessment, I  listened to the first disclosure of a violent marital rape, recounted by a woman client who had hoped to see a female mediator for her assessment. She wished to attempt mediation following the final separation to regain some power in ongoing discussions about child arrangements, in which she still considered her husband’s behaviour to be intimidatory and bullying. Mediation was for her the least-worst option. In his separate assessment, the husband recounted the same incident as an act of reconciliation at the end of a violent verbal argument. He wished to attempt mediation in order to secure more time with his six-year-old daughter. Mediation took place in separate rooms; the mother was open to the possibility of alternative arrangements, while the father felt that the ‘compromise’ on offer did not meet his needs. He commenced court proceedings; but after a frustrating first hearing, both decided to return to mediation, which then took place face to face. Again, little practical progress was made and mediation ‘broke down’: the mother’s further compromise and apparent flexibility were insufficient for the father, who returned to court. He expressed himself dissatisfied with mediation; she, on the other hand, felt that she had been 166

Assessment, capacity and truth empowered by the opportunity to present her point of view and felt better able to represent what she saw as the best interests of their son as a result. The mediators held the competing narratives about the ‘marital rape/ reconciliation’ within the mediation and made them explicit. They exercised judgement about the impact of these parallel truths on both parental communication and cooperation. The mediation that enfolded held in tension the subjective and objective perceptions of these truths, and the survivor/perpetrator diametric. The ‘survivor’ was empowered; mediation provided her with a safe space to communicate and assert her position. There was some acknowledgement by the ‘perpetrator’, but he did not have the capacity to recognise complexity. The eventual breakdown of the mediation was not about the opposing views of the past, but rather the different approaches to the future. These different truths (each both simple and complex, and each with elements of objectivity and subjectivity) mirror different professional preoccupations and perceptions. I  have been engaged in dialogue with colleagues in Women’s Aid.19 The core function of these colleagues is the protection and empowerment of the survivor; the core function of mediation is the finding of joint solutions. Finding a meeting point between these two professional truths, however painful, is an essential step towards greater understanding and expertise.

Assessment, capacity and truth How then might mediators more effectively assess the capacity of individuals to engage with each other’s truths? Our complainant at the start of this chapter argued – perhaps with some justification – that, ‘If my expectation that two persons’ preconceptions could be reconciled was unrealistic, why was the meeting arranged?’ Creating Paths to Family Justice is concerned in part with the dangers of mediating with people who are not emotionally or practically ready.20 One form of emotional unreadiness lies in the belief that one’s truth is the only truth. Assessment as to the capacity to move from this position is likely to be ongoing throughout the process. Consider another example: Vicky and Tony’s seven-year-old only child had been killed in a road accident four years previously. For much of the interim period, they had been focused on coming to terms with their grief, separating on what was intended to be a temporary basis some weeks before mediation commenced. Mediation was to be focused on a shortterm financial strategy, but most of the three lengthy co-mediated sessions concentrated on their differing perspectives of the accident, its aftermath and their grief. (This exploration in mediation rather than therapy – much individual therapy had already taken place – was because of the implications for the financial and property issues arising from the differing values they 167

An imaginative reflection on the place of truth in family mediation placed on that money and property.) Sadly, the conclusion from the three sessions was that they held such different ‘truths’ about the tragedy that had befallen them that neither reconciliation nor common ground was possible at this time. Painfully, they had discovered that moving forward at arm’s length and severing communication for a period of time was the only option. Mediation had been used, appropriately, to assess whether a common approach was possible. What minimum level of understanding might one expect from a participant in order to think that mediation might be suitable? Two concepts from the Mental Capacity Act 2015 may be helpful to mediators. First, it is presumed that someone has capacity unless shown not to have – this argues for giving it a try. Second, capacity is task specific – for example, the ability to understand court proceedings or to choose whether to be represented; for our purposes, this relates to Orbach’s ‘capacity to hold complexity in mind’. The sorts of questions that one might ask oneself or clients in relation to truth might include the following: • Might this person have the ability to recognise the possibility that there may be more than one way of looking at the situation under consideration, and the ability to understand that different people may have different perceptions of particular behaviours, which may have equal validity? (These are the questions implicit in Orbach’s definition of ‘psychological selfhood’.) • Could this person put to one side his or her particular ‘truth’ about what has happened in favour of a constructive conversation about what happens next? • Can these two persons put to one side their particular ‘truths’ about what has happened in favour of considerations of the best interests of their children and each other? • Can these two persons recognise that there may be a value to them (and to their children) in finding a common truth to guide their future planning? • In cases where there is abuse (or a perception of abuse), does the ‘perpetrator’ have the capacity to understand the perception of the other that his or her behaviour has been (or continues to be) intimidatory or abusive, and to recognise the need to modify that behaviour? And does the ‘survivor’ have the capacity to understand that the perpetrator may have a different perspective on his or her conduct in such a way that mediation may proceed safely?

Truth and mediation interventions How might mediators become better able to encompass the complexity of human interactions involved in family breakdown – specifically, to 168

Truth and mediation interventions assist participants in moving from individual, unreconciled perceptions of the past to a new shared truth which might inform their future behaviours? Mediators are trained to build on their innate qualities and some basic competences by developing skills and strategies within recognised processes and models – a professional task that might be characterised as a ‘modest endeavour’, but that has the capacity to hold and transform embedded conflicts through a much more audacious and compassionate intervention.21 Are there specific interventions particularly suited to address conflicts about truth? The process of mediation and its environment ‘The most important lesson we need to learn from what’s happening in the UK is that when decision-making processes, based on lies, are put in the hands of the people, societies – in this case British society – wind up down a blind alley.’22 Mediation is based on a clear and recognisable process or pathway,23 specifically to lead to along an open road, not ‘down a blind alley’. Moving through the stages of that process towards resolution – including initial clarity about what the participants want to achieve, sharing and examining objective information, placing any exploration of past truths clearly in the context of removing obstacles to the forward trajectory of the process, and leading to agreements on future arrangements and a shared truth – is, in its more sophisticated form, an essential element of mediating truth conflicts (Parkinson 2020). Mediator qualities Discernment and the exercise of judgement Mediators may need a more nuanced understanding of impartiality. Am I  impartial as to the outcome of an assessment of the appropriateness of mediation where there are no risk or other factors militating against proceeding in the interests of children? Being engaged and active is part of being truly impartial; while we may maintain a negative capacity, being passive or unengaged is not our job. Impartiality cannot always involve balance in the sense of equal weight being given to each perspective. Part of our impartiality as mediators involves our informed understanding of concepts such as fairness and (social) justice; we need to be aware of our own values, our own truths. We are required to be non-discriminatory and to provide equal access. We must make hard judgement calls (not least in relation to limited resources) in many of these areas. It is often necessary to give different weights to different points of view. When broadcasters and media attempt a ‘false balance’ – such as the historical approach of the BBC to climate change and its ‘deniers’ – it can be as damaging as propaganda or tabloid 169

An imaginative reflection on the place of truth in family mediation fake news. Balance, for the mediator as for the journalist, must include discernment and weighting.24 Mediators must also test out their own judgements about the centrality or otherwise of the ‘truth obstacle’ in terms of the proportionality of the endeavour. Consider the following example: two mediators were working with the young parents of a four-year-old child, their new partners and the maternal grandmother – the assessment having been that, while only the parents had formal responsibility for decision making, all were directly involved not only in the arrangements, but also in the decision making for the child. The mediation was set up following a final contested hearing, the result of which was considered unmanageable by all concerned. Over the course of the session, the young parents and their new partners displayed a surprising amount of maturity about their future relationships and laid past difficulties to rest. It was the grandmother who struggled to move on, since the court hearing had involved significant ‘lies’ about her behaviour and character that she could not come to terms with. Progress was made only by working with the younger generation to look forward, and spending time separately with the grandmother trying to explain the different considerations of truth and confidentiality within an adversarial court process. In the end, it had to be acknowledged that her difficulty over ‘truth’ was not central to the issue of developing child arrangements. Humility and courage ‘Speaking truth to power’ is a non-violent political tactic, employed against governments or others regarded as oppressive or authoritarian.25 Mediators hold their own expertise or ‘received wisdom’; they ‘hold certain truths to be self-evident’.26 These may relate to the rights of children to be heard, for their wishes and needs to be paramount in discussions between their parents, or for abuse to be challenged within mediation. A mediator must approach discussions of truth with both humility and courage – ‘in a time of deceit telling the truth is a revolutionary act’.27 Falsehoods can be very powerful and proceeding on the basis of half-truths or unacknowledged abuse very dangerous.28 Some skills and strategies Individual truths: listening, exploring, challenging For all that clients assert otherwise, deliberate falsehoods are relatively rare in mediation. ‘The silent transition from falsehood to self-deception is useful; anyone who lies in good faith is better off, he recites his part better, is more easily believed by the judge, the historian, the reader, his wife and children’ (Levi 1988: 20). While it is not our responsibility to be forensic in the sense of ‘finding facts’, it is necessary to be more than passive in relation to what we are 170

Truth and mediation interventions being told. We need to be able to form some working hypothesis that will direct our interventions. Our aim is to assist participants to find an accommodation with each other’s truths. But mutual acknowledgement, exploration, challenge and reflection may be impossible to achieve in the early stages of a highly conflicted conversation; more progress may be made by addressing the individual perspectives in separate sessions. It is unrealistic to assume that mediation can progress in anything other than a highly superficial way where individuals continue to assert that their own truth is the only acceptable one – whether from belief, mental ill-health or poor timing in relative to loss/emotional readiness(the ‘Orbach’ approach); or from the need of abused individuals for the truth of their own experience acknowledged (the ‘Levi’ approach) – that is, for a deep hearing of their story, whether by the mediator or also by the ‘perpetrator’.29 Towards a shared truth: reframing, mutualising, questioning ‘Relativity’ is not a soft concept; so if truths are relative, assisting the participants to find an accommodation with each other’s truths is an appropriate aim.30 Particular skills and strategies here include reframing, mutualising, questioning and management. Effective reframing and mutualising are valuable tools, but have their risks. When we reframe, not least from room to room, how much of the truth and meaning do we take with us? Does our own use of language risk losing the ‘truth’ of what is being told to us? If we mutualise a comment (moving from ‘You never listen to a thing I say!’ to ‘It seems that perhaps both of you experience a lack of attention and respect on the part of the other’), how far is the truth lost in the retelling and how far is the meaning devalued or trivialised? And yet, for example, how powerful might be an intervention that reframed the word ‘truth’ as ‘perception’ or ‘truths’ as ‘perspectives’? We will need strategically to employ questions that enable separate and mutual acknowledgement of both facts and complexity. Appropriate questions might include the following: • Do you accept, John, that this is Janet’s perception of what happened on that occasion? • Can you acknowledge, Janet, that John experiences your planning in relation to the children arrangements as your continued control of him? •

Is it possible that there could be an alternative understanding of this situation to your own?

A next step may then be the use of more circular and reflective questions. However, the use of closed questions to assist in ‘fact-checking’ is also an 171

An imaginative reflection on the place of truth in family mediation important part of this exercise – ideally through the exchange of verifiable information. Language and metaphor The mindful use of language is vital. The language of truth may itself be an obstacle; it may be just another example of the ‘bad language’ we might ask clients to jettison. We can so easily lock ourselves into new, cruder truths by careless use of language; we end up fighting over the words. The language of metaphor and analogy – and even of poetry and song – and the use of non-verbal, pictorial techniques can divert from a ‘truth impasse’ or uncover a deeper, common truth. Perhaps it is in the poetic imagination that we best find a reconciliation between the binary and the complex; and perceiving mediation as a creative act that provides a different framing through which fresh truths may be gained is perhaps closest to poetry and the creative arts.31 When we read poetry, we re-read, reflect, slow our responses, accommodate other possible, deeper meanings; this form of reflection can be integrated into interactions in mediation. A  choir coming together for the first time in the rehearsal room will bring its own individual parts, which begin to have meaning only when they are combined in a polyphonic shared harmony.32 An elliptic, slantways approach to truth may assist. Emily Dickinson tells us to ‘tell all the truth, but tell it slant’.33 The task of the mediator is to find the language authentic to these participants that will enable them to ‘only connect’34 – and therein lies our creativity and opportunity.35 Communication Some forms of communication are more effective at conveying the complexity of truth than others. It is entirely proper to use the examples of social media and public discourse to point to the damage that can be done when language is abusive or debased. Mediation services – and some courts – negotiate or impose ground rules to stay off social media during the process of negotiation. Work to identify both the safest and the most ‘truthful’ form of communication will be invaluable. The terser and more immediate the form of communication, the less likely it is to convey a nuanced truth. Teaching ways to interpret communications positively and constructively and actively modelling communication are powerful ways for mediators to assist. Past, present and future focus Truths established in court are usually about the past; mediation is about the making of future arrangements through a future focus.36 Yet again, past, present and future are relative, just as a mediation process is seldom 172

Some theories, approaches and models linear. Perceptions of the past undermine confidence in the ways in which a parent might communicate with children in the future. Mediation is not a ‘truth and reconciliation’ process; it is future focused. But the past is the best predictor of the future when it comes to risk; enduring experience and perceptions of abuse and coercion need to be recognised. This does not mean that it is necessary to come to an agreed version of ‘the truth’ or of ‘what happened’. Rather, the disparity needs to be acknowledged transparently before moving to future focus at the appropriate time.

Some theories, approaches and models A narrative approach Once a computer was asked, ‘What is the truth?’ It took a very long time before the reply came, ‘I will tell you a story’37 Since then, at an uncertain hour, That agony returns, And till my ghastly tale is told This heart within me burns38 Without necessarily adopting a thorough-going narrative mediation approach (Winslade and Monk 2001), stories do need to be told and heard. While family mediation is generally seen as a solution-focused process, some attempt to look back before looking forward – whether this relates to elements of intimidation, perceptions of why or how a relationship failed, or competing narratives about the parenting of children – may be necessary. Often, some of this ‘storytelling’ will be started in the pre-mediation suitability assessment, where the heart may indeed continue to burn until the story is told. Strategies which ‘loosen negative attributes’ to perceptions of truth in story form and ‘create a context from which a preferred (mutual) storyline can be developed’ (Winslade and Monk 2001: 5) may be particularly effective where conflicts about past truths pose obstacles to mutual progress. Participants need permission to tell part of the story, to listen and hopefully to acknowledge, if not apologise.39 A ‘therapeutic’ approach Transformative and therapeutic mediation (Irving and Benjamin 2000) are again recognised models or theories of mediation. A  ‘therapeutic’ intervention is likely to be one that enables an individual participant in mediation to adopt an understanding of his or her own truth that may be accommodated to that of his or her former partner. Such skills and interventions may be incorporated into the mediation process by 173

An imaginative reflection on the place of truth in family mediation way of enhanced work in preparation and assessment, individual work in separate sessions or simply changing the focus within the joint session.40 Co-mediation There may be many advantages in a co-mediated or multi-disciplinary approach to truth, including modelling the conversation about disagreement, adopting different roles/positions in the argument, and bringing different skills and approaches to the embedded truth. There is the possibility here of mediators demonstrating that there are always multiple perspectives reconcilable through conversation – that the whole world is always in a ‘double bind’.41

Conclusion – ‘in the beginning is the conversation’42 The start of St John’s Gospel can be more accurately translated as ‘In the beginning was the dialogue’, rather than ‘the Word’. That is, revelation and truth are found in dialogue rather than black letter law or even scripture – this is the journey from Old Testament Word/Law to New Testament Love/Conversation. If the most reliable, enduring truths are indeed likely to be those arrived at in conversation, mediation might be one of the very few places where such creative tensions can be held and progress can be made. The meaning and truth are in the inter-relationship, in the conversation; a complex truth, arrived at painstakingly in the mediation room, is usually a ‘better’ truth on which to build a future. Mediators endeavour to assist clients to find a new shared truth that will be the foundation of their future lives – whether a set of principles that informs their choices over financial matters, a set of guidelines that may make future conversation both safe and effective, or an area of common ground about their relationship and priorities as separated parents. This ‘new truth’ may allow them to leave behind old perceptions or hurts – often, these still need to be acknowledged as ongoing obstacles. It will be a new plan or relationship that is authentic to the current situation and individuals without undermining deeply held truths about the past. Mediators’ truth is that there is a benefit in finding common ground and working in common enterprise. This does not mean suspending judgement on what is right, or failing to challenge what is objectively incorrect or subjectively experienced. It does mean taking the examples of the last few years of abusive behaviour and offensive language in public life, of fracturing and polarising public decision making, and learning from them. It means accepting some basic truths – whether about the value of humanity working inclusively and cooperatively, or about ‘climate change’ of all sorts. Mediators – perhaps especially family mediators – are in a privileged position to set examples whereby these apparently contradictory views of truth can be reconciled. 174

Conclusion – ‘in the beginning is the conversation’ Every day in our work, we grasp this challenge, even if we do not always articulate it. There is a wider conversation to be initiated about this. Yet another former President said, ‘Partnership and Cooperation are the only way to advance our common humanity.’43 There is a simple truth in common ground: ‘Behold how good and how pleasant it is for sisters and brothers to dwell together in unity.’44 In the baffling, chaotic worlds of family breakdown, dysfunctional politics and social injustice, it is essential to create and develop systems which enhance cooperation and communication, partnership and consensus, and demonstrate empathy and compassion. So whose truth is it, anyway? The shared truth of mediators and peace-builders is that it is everyone’s truth. ‘Truth is a golden thread, seen here and there In small bright specks upon the visible side Of our strange being’s parti-coloured web. How rich the universe!’ 45

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An imaginative reflection on the place of truth in family mediation

Endnotes 1 William Shakespeare, Sonnet 138. 2 See critique of the limits of the adversarial process by Supreme Court Judge Jonathan Sumption in his 2019 Reith Lectures, particularly the second lecture ‘in praise of politics’, first broadcast 20 May 2019, and notably in the last ten minutes of the lecture: ‘Litigation can rarely mediate differences.’ 3 All of the examples in this chapter – quoted anonymously and with details changed – are from recent cases I have either been directly involved in or supervised. 4 Rudy Giuliani, 19 August 2018. 5 Donald J Trump (Twitter @realDonaldTrump), 17 October 2012. 6 The Washington Post, 20  October 2017, reporting on a speech at the New York Policy Forum, 19 October 2017. 7 The simple fact is that we have, and have for many years had, divorce by consent – not merely in accordance with Section 1(2)(d) of the 1969 Act, but also, for those unwilling or unable to wait for two years, by means of a consensual, collusive manipulation of Section 1(2)(b). Per Sir James Munby, [92–94] Owens v Owens [2017] EWCA Civ 182 in the Court of Appeal. 8 Ministry of Justice press release, ‘New divorce law to end the blame game’, 9 April 2019. 9 Sir James Munby has elsewhere advanced a subtler view of the scope and limits of the family justice system (eg, see FL March 2019, 264–277). 10 Orbach (2016). In this book, Susie Orbach reflects on her own fictionalised therapy sessions on Radio Four. From her somewhat advantageous position as a psychotherapist in the private sector, she effectively ‘screens out’ those without the capacity to recognise the existence of more than one truth; it is not so simple for the mediator! 11 Explored in Tutu (2015). 12 The Latin word ‘media’ or ‘medium’, with a variety of meanings, is the derivation of both modern words ‘media’ and ‘mediation’. 13 Lorna, a victim quoted in Barlow (2015) p 9. 14 Mediation and domestic abuse is dealt with Chapter 16; I explore the topic in more detail in a series of Conversation Pieces Robinson (2018–2020). 15 In an ongoing conversation with Dickie James MBE, Chief Executive of Staffordshire Women’s Aid, she comments: ‘While I have always appreciated mediation as a means of conflict resolution, even transformation, I  had many reservations about its use in the context of supporting victims of domestic violence. I  felt that family mediation could put victims at risk because its ethos of objectivity and neutrality could easily overlook the power inequalities between perpetrators and victims of violence, and miss the subtleties and power of coercive control in such relationships. Upon discussion with a friend and colleague who is a member of the Family Mediators Association (FMA) (the writer), we were motivated to take both of our views to the Annual FMA Conference in Oxford. We repeated the conversation we had as the starting point for the sessions, followed by presentations and workshops. The result was a better understanding on the part of family mediators of the risks of overlooking domestic violence and a pledge to find ways to better risk assess couples prior to mediation, perhaps in liaison with others. From my own point of view, I recognised that sometimes there is not one single way to support victims of violence towards recovering and rebuilding of lives; and that in certain contexts, family mediation can help even victims of domestic violence to resolve issues. The key was always for the two organisations to work together and understand our differing approaches.’ 16 Whatling (2012) and Robinson (2018–2020) contain examples of escalating questions. 17 For example, domestic violence and abuse research and advice on the website of the Royal College of Psychiatrists, accessed online at www.rcpsych.ac.uk/mental-health/ parents-and-young-people/information-for-parents-and-carers/domestic-violence-andabuse-effects-on-children, on 19 December 2019. 18 The most fundamental of the Chinese fifth century General Sun Tzu’s principles for the conduct of war, set out in The Art of War. 19 Discussed in more detail by Robinson (2018–2020), Parts 3–5.

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Endnotes 20 Creating Paths to Family Justice, accessed online at familymediationcouncil.org. uk/wp-content/uploads/2017/08/Creating-Paths-Briefing-Paper-02.08.17.pdf on 6 December 2019 21 The Family Mediation Council Standards Framework 2014 (currently subject to revision) provides a good start for listing the theoretical underpinnings, awareness and skills required when dealing with situations of abuse or of conflicting viewpoints. 22 Spanish Prime Minister Pedro Sanchez, 10  April 2019, quoted in The Guardian 10 April 2019. 23 Clearly set out as Gulliver’s five or six stages – Gulliver (1979), expanded upon by Roberts (2013: 106), and Parkinson (2014: 2020). 24 How different might the EU referendum have been if there had been some attempt to weed out ‘untruths’ or to have provided the type of peer-reviewed information that occurs elsewhere? Taking the (not unreasonable) analogy of investigative journalism, Robert Peston comments: ‘I  do think that they went through a period of just not being confident enough. Impartial journalism is not giving equal airtime to two people one of whom says the world is flat and the other one says the world is round. That is not balanced, impartial journalism. Impartial journalism is about weighing the evidence and saying on the balance of probabilities … this is the truth. It is the role of a journalist to say, “We’ve got these two contradictory arguments, I’m now going to advise all of you which is likely to be closer to the truth.”’ Accessed online at www.theguardian.com/media/2018/oct/06/robert-peston-bbc-notimpartial-during-eu-referendum-campaign) on 19 December 2019. 25 The phrase may have originated with a pamphlet Speak Truth to Power: A Quaker Search for an Alternative to Violence, published in 1955.  26 Thomas Jefferson in the American Declaration of Independence 1776, most famously quoted by Abraham Lincoln in the Gettysburg Address in 1863. 27 Attributed to George Orwell. 28 ‘A lie gets halfway around the world before the truth has a chance to get its pants on’ (Winston Churchill). 29 The process of exploration by the mediator will begin in the initial assessment meeting, but may well require significant further work. The parameters of such work are varied, either preparatory or integrated into the joint process. The aim is to prepare the participants in mediation to come together in due course to explore multiple truths and to re-focus on the future and on the needs of each other and of their children. Separate exploration is therefore likely to be a necessary first step to removing truth obstacles to effective mediation. There has been significant development of models involving separately confidential ‘therapeutic’ work with individuals in recent years; such mediation may require a different approach to confidentiality. The mediator could adopt a five-stage process in relation to these individual sessions, involving listening, acknowledging, exploring, challenging and reflecting. The starting point for any deeply held truth must be for that person to feel that he or she has been heard; otherwise the possibility of accommodation is inevitably reduced. If some progress in transforming perceptions is to be achieved, it may require an ongoing process of reflection. Setting ‘homework’ at the end of sessions (whether separate or joint) and in subsequent reflective correspondence is an essential mediator task. 30 Indeed, the transition from Newton’s fixed mechanics to Einstein’s special and general relativity and beyond is the start of our modern understanding of our universe; here is another metaphor for the development to shared truth in relationship within mediation. 31 I can best express this by referring to conversations that I have enabled in training and events. I have been offering informed conversations for mediators about ‘Whose Truth is it Anyway’ at training events over the last three years. In October 2018, our World Conflict Resolution Day event took the form of a dialogue between The Emergency Poet Deborah Alma and Dickie James of Women’s Aid, family mediators and members of the peace-building world overseas. Since 2005, Lisa Parkinson and I have hosted biannual Mediation, Science and Arts Weekends, where we seek out the connections between ‘scientific truth’ and the poetic imagination.

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An imaginative reflection on the place of truth in family mediation 32 Today singers are allowed the full vocal score to sing from. In the time of Thomas Tallis, individuals would only bring their own separate part books; his 40-part Spem in Alium (c.1586) involved the bringing together of 40 lay clerks from around the country with no idea of how their individually written parts would sound in inter-relationship until they found themselves in one room together. 33 Emily Dickinson, Poem 1263. 34 Forster (1910) p 27. 35 The use of deeper, more resonant language, which is still sensitive and authentic to these participants, is likely to deepen understanding. 36 Family Mediators Association Foundation Trainer Beverley Sayers says to clients: ‘I have the privilege and delight of not having to decide on one truth. I will continue to be informed by each of your truths and move on from there.’ 37 Peter Brook, Theatre Director, quoted in The Guardian, 15 April 2013. 38 Samuel Taylor Coleridge, The Rime of the Ancient Mariner – ll 582–5, quoted at the start of Levi (1988). 39 Awareness of the twin dangers of both hearing the story and excluding the story is not new; see, for example, Grillo (1991). 40 Examples of this approach in preparatory stages may be found in Cantwell (2015) and Parkinson (2020) and Whatling (2012). 41 Bateson (1972) quoted by his daughter Nora Bateson in her introduction to her 2011  DVD  An Ecology of Mind. Bateson’s work explores in depth the ‘interdependent systems and their dynamics … wound around countless causations that span multiple perspectives’. 42 Robinson (2018–2020) (Part Two). 43 Barack Obama, Berlin Wall 2008. 44 Originally the start of the 133rd Psalm of the Old Testament Book of Psalms. 45 Arthur Hugh Clough, The Thread of Truth, 1839.

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References

References Barlow A, Ewing J, Hunter R  (2015) Mapping Paths to Family Justice (London: Palgrave), accessed online at http://socialsciences.exeter. ac.uk/law/research/groups/frs/projects/mappingpathstofamilyjustice/ on 19 December 2019. Bateson, G  (1972) Steps to an Ecology of Mind (Chicago: University of Chicago Press). Cantwell B  (2015) ‘Emotional readiness: a key factor in DR practice’ Family Law, Vol 45 461–66. Forster, EM (1910) Howards End (London: Edward Arnold). Grillo, T (1991) ‘The Mediation Alternative: Process Dangers for Women’, Yale Law Journal Vol 100 Issue 6 1545–1610. Gulliver PH  (1979) Disputes and Negotiations (New York and London: Academic Press). Irving, H and Benjamin, M (2000) Therapeutic Family Mediation – Helping Families Resolve Conflict (Thousand Oaks: Sage). Levi, P (1988) The Drowned and the Saved (London: Abacus). Orbach, S (2016) In Therapy (London: Wellcome Collection). Parkinson, L (2014) Family Mediation (3rd edition) (Bristol: Family Law). Roberts, M (2013) a-z of mediation (New York: Palgrave Macmillan). Robinson, N (2018–2019) Conversation Pieces: reflections in family mediation: • ‘Part Two: in the beginning is the Conversation’ (Assessments Part Two) Family Law, Vol 48 215–22. • ‘Part Three: the paradox of mediation and domestic abuse – screening out and providing a safe environment’ Family Law, Vol 48 1580–89; • ‘Part Four: the paradox of mediation and domestic abuse – including in and building a safe future’ Family Law, Vol 49 70–74; • ‘Part Five: the paradox of mediation and domestic abuse – protective measures and encouraging positive outcomes’ Family Law, Vol 49 206–12.

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An imaginative reflection on the place of truth in family mediation Tutu, D  and Tutu M  (2015) The Book of Forgiving: The Four-Fold Path (London: William Collins). Whatling, T  (2012) Mediation Skills and Strategies (London; Jessica Kingsley Publishers). Winslade, J and Monk, G (2001) Narrative Mediation: A new approach to conflict resolution (San Francisco: Jossey-Bass).

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Chapter 10

The voice of the child in family mediation Lesley Allport

Introduction ‘You need to talk to the mediator when you need to make it perfectly clear what you want from Mum and Dad.’ These are the words of an 11-year-old boy who participated in a study (McIntosh 2000: 65) exploring the use of an early, routine meeting with children in mediation, and who saw with crystal clarity the benefits of having a voice in the process. However, if you were to pose this as a discussion point to a room full of mediators, you would encounter a range of responses, varying from appreciation to apprehension. In all likelihood, they would be voicing queries that have engaged researchers and policy makers over the last 40 years: ‘Does a child of 11 know his own mind? Where does responsibility for decision making lie? What would be the purpose in meeting with him?’ And, more specifically for mediators: ‘Is this part of my role? Will I  be able to engage him? Will talking to him make things worse? Will his parents be able to hear what he has to say? What if there is a difficult message to take back?’ These are questions that contribute to the ongoing debate about how far children should be invited to be directly involved in mediation. In this chapter I will consider what lies behind these questions, together with the developments that have informed current-day approaches to hearing the voice of the child. The discussion about children’s involvement in mediation constitutes just one part of a much larger dialogue about the impact of separation and divorce on children in a society where the structure of family life has undergone massive change within the last half-century. Broader still, the focus on children’s welfare reflected both internationally in the United Nations Convention on the Rights of the Child 1989 (UNCRC) and nationally in the UK Children Act 1989 requires us to consider the autonomy, agency and participation of children in any decisions that affect their future. There is a huge amount of research which investigates these important concepts and provides a rationale for listening to children’s views. I will examine the concept of children’s involvement in family mediation from three different perspectives: first, the major developments that have 181

The voice of the child in family mediation occurred within the civil justice system over the last 40 years, which place children’s future well-being at the centre of decision making; second, the research concerning children’s views on the importance of being heard, which repeatedly draws our attention to the essential elements of respect, recognition and participation for children and young people when decisions are being made about their lives; and finally, the influence of these findings and the legislative framework on the development of policy and professional standards for family mediators in England and Wales. The interplay between these three perspectives over the last 40 years is fascinating. I will focus on three periods of time: the mid-1980s and the pioneering days of family mediation; the turn of the century and the following decade incorporating the wealth of research about children’s experience of divorce; and from 2010 to the latest legal and professional developments of the current day.

Changing perceptions of the mid-1980s to late 1990s The legal framework Though undoubtedly the culmination of several years of change and development, two pieces of legislation stand out as landmarks in influencing the way that the law approaches the issue of children’s interests and needs. The UNCRC is a treaty that sets out the civil, political, economic, social and cultural rights to which all children are entitled. It covers crucial aspects of children’s upbringing, such as their right to freedom of expression, to safety, to education and to relax and play. It places responsibility on governments and adults generally to be proactive in respecting these rights. Article 12 of the UNCRC, which is of the greatest relevance in this consideration of children’s involvement in mediation, states that: ‘In any matter or procedure affecting the child, the views of the child should be given due weight, in accordance with their age and maturity. Those capable of forming opinions should be assured of the right to express their views freely’ (Article 12.1). Article 8 of the European Convention on Human Rights (1953) protects the right to private family life and encompasses children as well as adults. More specifically, the Hague Convention (1980) directs that careful consideration should be given to the inclusion of children’s views in decision making. However, the UNCRC shifted the emphasis in how children are to be regarded: not as passive objects of concern, but as active agents in their own right capable of forming their own views and able to influence their own lives. This is therefore of great significance in the context of family breakdown. The second important legislative development, which occurred at the same time in England and Wales, was the Children Act 1989. Section 1(3) placed children’s welfare and safety at the centre of judicial decision 182

Changing perceptions of the mid-1980s to late 1990s making. It specified that ‘the wishes and feelings of the child’ should be a central factor. Courts were obliged to consider children’s physical, emotional and educational needs; their age and sex; their background circumstances and the likely effect of any change; any harm the child has suffered or is likely to suffer; and parents’ ability to meet the child’s needs. In the context of separation and divorce, the Act placed the emphasis on the continuing responsibility of both parents for their children, rather than rights over them. It supported the expectation that children should be able to maintain an active relationship with both parents. The legislative developments at the end of the 1980s, therefore, were of great consequence in recognising children’s autonomy, their ability to form and express views, their right to a platform from which to do so and a right to redress when those views were ignored. These developments also influenced the debates concerning children’s citizenship and agency which were taken up by later researchers and policy makers. They heralded a change in post-divorce parenting, encouraging a future focus on children’s welfare and a shift away from the traditional role of the courts in making a judgement about the state of the marriage. As Smart (1999, 23) observes: ‘The Children Act is most significant because, in its private law provisions, it is quintessentially concerned with post-divorce family life. The Act differentiates between spouses and parents and is much more interested in the latter. It is also concerned with wider kinship networks and allows for a legal conception of family life which is not coterminous with marriage.’ The legal framework reflected changing attitudes in two important areas: the sociological understanding of childhood and what it means to be a child and the perception of divorce as harmful for children. Sociological approaches to children Sociologists had tended to view children as young people, not yet fully formed, whose role was to learn to become properly functioning adults. Smart, Bren and Neale cite French sociologist Durkheim, who described childhood as ‘a period of growth… in which the individual, in both the physical and the moral sense, does not yet exist’. A child was ‘not a complete work or a finished product – but… a becoming, an incipient being, a person in the process of formation’ (2001: 1). The adult task was to teach, help and nurture: children were viewed as projects that needed to be managed (Hallden 1991). They moved through psychological and physical stages of development acquiring skills, knowledge, competency and rationality. Socialisation theory described children as internalising societal values in order to be transformed into social adults and identified the family as the key educators in this. In this model, which emphasised parental agency, children were not credited with their own views, but were viewed as an extension of their parents. 183

The voice of the child in family mediation Through the 1980s and 1990s, however, children came to be recognised as fully social beings, as ‘creative social and moral agents with the strengths and the capabilities to shape their own childhood’ (Smart et al 2001: 2), and as persons in their own right, able to act, interact and influence their world. While the family remains a crucial influence, children’s agency is also more broadly informed by culture, gender, locality and ethnicity. ‘Children are autonomous beings able to negotiate rules, roles and relationships and to take responsibility for their own well-being and that of others’ (ibid 2001: 12). Meanwhile, family structures were also undergoing a transformation, influenced by increasing diversity across culture and gender, as well as greater mobility. A  significant increase in divorce rates resulted in the formation of new family units, creating more complexity and bringing about a fresh perception of family relationships as a series of negotiations and re-negotiations in which children themselves play an active part (Emery 1994). Legislation reflected these changes in society and family life. The Family Law Act 1996 proposed to dispense with fault-based divorce and encouraged parties to use mediation in order to reduce acrimony and encourage collaborative decision making before reaching court. Though ‘no-fault divorce’ was not implemented, the principle of encouraging the use of mediation was transported to the Access to Justice Act 1999. Significantly, Part 3 of the Act states that mediators must encourage parents to consider the welfare, wishes and feelings of children and ‘whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation’. In parallel, the sociological recognition of children as social beings with their own agency challenged mediators to consider how to involve young people in mediation. Divorce as harmful for children During the 1970s, criminological studies resulted in links being established between delinquency and family breakdown.1 Children from ‘broken homes’ were found to be more likely to underperform at school and in employment, more susceptible to relationship breakdown themselves and more prone to insecurity and depression. In 1980, Wallerstein and Kelly published their findings on the experiences of 60 American families, including 131 children, who had been through divorce.2 Their work, which was to have a considerable impact on both policy and practice, painted a grim picture of life for children following divorce, characterised by a lack of communication from parents; little or no consultation about future arrangements; feelings of unhappiness, rejection and loneliness; pressure to ally themselves with one parent or another; and continuing conflict between ex-partners. Where children had the support of at least one parent, they could come to terms with family breakdown; but where 184

Changing perceptions of the mid-1980s to late 1990s parents made no time for them or involved them in conflict, they suffered. Two key factors emerged from this influential research: children’s vulnerability as a result of their parents’ divorce and the importance of maintaining a relationship with both parents. These findings were supported by other researchers such as Emery (1988), who showed that children coped best with divorce when parental conflict was minimised and where constructive relationships between parents and children were maintained. Research findings in the UK also reflected children’s vulnerability. Walzack with Burns (1984) found that 26 per cent of children in their study were badly affected by their parents’ divorce and that the quality of communication between parents at the time of separation was a vital influence on their future relationships. Mitchell (1985) found that parents made assumptions about children’s feelings and were unaware of their need for information and continued contact with both parents. McCredie and Horrox (1985: 7) saw how children could be caught up in parental conflict for years. One child said: ‘Above all a parent shouldn’t run the other parent down. Parents shouldn’t try and turn their children away from the other.’ All these findings pointed to the importance of supporting parents to separate with as little acrimony as possible and in consequence the mid1980s saw the emergence of divorce conciliation as an option. Conciliation pioneers The Finer Committee on One Parent Families (1974) drew an important distinction between reconciliation and conciliation, which reflected the change in attitude towards divorce. ‘Conciliation’ was defined as: ‘assisting parties to deal with the consequences of the established breakdown of their marriage, whether resulting in a divorce or a separation, by reaching agreements or giving consents or reducing the area of conflict upon custody, support, access to and education of the children – and every other matter which call for a decision on future arrangements’ (para 4.288). Conciliation services, located within both the civil justice system and the voluntary sector, were established in the early 1980s, offering what we would recognise today as mediation. By 1986 the National Family Conciliation Council (NFCC), setting professional standards and developing a code of practice, had drawn together a network of 34 services from the voluntary sector and was growing rapidly. The NFCC began to identify differences between the role, purpose and ethical practice of a family conciliator working outside the courts and those of lawyers, social workers, therapists and other professionals working with families in a welfare capacity. 185

The voice of the child in family mediation Though conciliation was clearly understood to be a process that supported two separating partners to reach agreements and make their own future arrangements, the question of whether and how to involve children was evident from the early days. Conciliators tended to come from a social work or therapeutic background and were acutely aware of children’s welfare and their need to be heard.3 However, this also threw up dilemmas, as Lisa Parkinson (1987: 48) – one of the founders of the first out-of-court Conciliation Service – pointed out: ‘we underestimate children’s perceptiveness and the isolation they experience if we talk about them instead of with them, without giving them the information and the reassurance they need about decisions that directly affect them … even young children can have more understanding of the emotional consequences of separation than adults may imagine. But how do we consult children without giving them inappropriate influence and responsibility…?’ Garwood (1990) gives an account of the Lothian Family Conciliation Service, established in Scotland in 1984, which adopted a specific policy of speaking directly to children as part of the conciliation process, whether individually or as part of a family meeting. It was considered that this would best serve the interests of children who were often confused about decisions being made. Agreements would be more sustainable if children understood the reasons for them, and an impartial facilitator could help to reinforce the parties’ continuing role as parents, reduce their conflict as ex-spouses and support children’s emotional adjustment to changes within their family (Garwood 1990: 44–45). Garwood’s pilot project operated on clearly defined guidelines: conciliators received special training, meetings went ahead only with the consent of both parents and the purpose was clearly established with parents in advance. Though the take-up was low (children were seen in 19 per cent of cases),4 the feedback was positive. Meetings made a difference – whether it was providing children with someone to talk to or giving a clear message to parents that subsequently improved understanding and influenced future arrangements. However, they also raised questions. Young participants themselves brought up the issue of confidentiality and stated strongly that the privacy of the meeting was vital. Garwood’s later reflections (Garwood 1992: 358) revealed a variety of views among conciliators themselves: ‘Some conciliators see it as essential, indeed ethically correct for children to be heard before parents make arrangements for them. Others regard conciliation as an adult negotiating process, where parents are seen as being responsible for the decisions they make for their children … other[s] … would take a less strong line and include children if they thought it would enhance the conciliation process either by helping parents to make decisions, or by ensuring that children could have some voice in the decisionmaking.’ 186

New insights in the 21st century Some conciliators were concerned at the risk of becoming an advocate for the child and losing their impartiality. Others worried that parents might pressurise children to respond in certain ways. Finally, conciliators’ confidence in meeting and talking with children was recognised as an important factor which depended largely on their background and previous professional experience. Even in those early pioneering days, therefore, questions were raised about the risks and opportunities of seeing children directly in mediation, especially concerning the purpose of those meetings. Was this an intervention that would primarily benefit children, give recognition to their emotional needs and allow their views to be heard and taken seriously? Or was it a means to reassure parents and provide them with information to assist decision making? Thirty years on, it can be argued that mediators still face these same dilemmas.

New insights in the 21st century Research advances The turn of the century heralded a new wave of research which aimed to gain deeper insight into children’s experiences of change in their family lives. Building on the research of the previous 20 years,5 Smart and her colleagues engaged in studies which were to have a significant influence on mediation practice and served to crystallise the debate into two different approaches to children and young people: that of welfare and that of citizenship. The welfare approach, they argued, saw children as the vulnerable victims of their parents’ divorce who needed to be protected from the responsibility of decision making and having to choose between parents. The citizenship approach, on the other hand, viewed children as able to make sense of their situation and form their own views. These views, the researchers proposed, should be incorporated into the negotiations about future family arrangements. Two projects examined how children shaped their own childhoods in the face of ongoing parental conflict and the need to move between two homes. They started from the premise that children are capable of making decisions and choices (Smart et al 1998). Respondents in their study described the importance of continuing family relationships based on care and respect, including those with new partners and siblings. Where parents were systematically undermining these values, the researchers found that many children formed strong views that they were able to articulate and, in extreme situations, took steps to cut themselves off from the relationship. Children came to terms with separation and accommodated new patterns of family life and, though they may have experienced loss, there were equally opportunities for gain. Some played an active role in initiating or re-establishing contact with a non-resident parent. Many children displayed empathy for their parents 187

The voice of the child in family mediation and learned the value of their relationships through their changing family lives. They frequently demonstrated care and fairness in their approach, often sacrificing their own needs in order to maintain equilibrium. There were clear views about the need to be given information, to be consulted and to participate in decision making. The researchers cite one respondent, Jake, aged 11 (Smart et al 2001: 103) who brought together a number of these values: ‘I think the people who are involved should get to decide, not by themselves, but by helping each other to reach some kind of agreement as to what would be best’ (emphasis added by the researchers). Smart (2001: 103) comments that: ‘The emphasis placed by the children on joint discussions and negotiations is instructive… It presumes that no-one automatically knows what is best, but that it will emerge from negotiation and discussion in which everyone participates… All these children appear to be assuming that children have a right to some degree of participation in family life and how it is organized.’ Other research projects conducted in the UK (eg, Dunn and DeaterDeckard 2001) highlighted children’s need for information and explanations from parents, and endorsed the idea that children were more likely to feel positive about spending time in two separate households if they had played an active role in deciding on the arrangements and could talk freely about this with their parents. Looking specifically at the impact of mediation, a longitudinal study conducted by Emery showed that the long-term effects of using mediation were considerable. Twelve years later, children were much more likely to be in regular contact with their non-resident parent. There was more discussion and collaboration between parents, who reported that mediation had educated them about their children’s emotions and alerted them to the need for long-term cooperation even if this was difficult to achieve immediately. Emery’s research highlights the importance of ‘[m]ediation as a forum for re-negotiating relationships as well as negotiating agreements’ (2005: 13). O’Quigley (2000) and Hawthorne et al (2003) considered the likelihood of children being directly involved in the mediation process. They found that, though mediators were well aware of the importance of children’s welfare, wishes and feelings, they addressed these indirectly, by encouraging parents to focus discussions on their children. Where children had played an active part in the process, practice had varied: they might participate at a final family meeting in order to hear directly about parenting plans; a mediator might meet a child alone partway through the process and, with permission, ‘represent’ the child’s views in the ongoing mediation; or a mediator might ask a colleague to perform this role. Generally, while these researchers were cautious about the dynamics of power imbalances, the need for specialised training and a considered approach as to how such 188

New insights in the 21st century meetings should be handled, meeting directly with children was viewed as an opportunity that was underused. Children themselves wanted more explanation and to be listened to: ‘The trouble was they never explained anything to us … We needed to know what was going on, what was happening, how things would work out. … We needed help from outside but there just didn’t seem to be the right person to turn to. No-one seemed to be there to help us, especially us, the children. Mum and Dad had the lawyers but we had no one’ (O’Quigley, 2000, 10). Meanwhile, new practice being piloted in Australia gave pause for thought among practitioners in the UK. An initial pilot (McIntosh 2000), followed by a more in-depth study (McIntosh and Long 2006), proposed a far more succinct model for involving children. The researchers offered two interventions: child-focused dispute resolution and child-inclusive dispute mediation. They then compared the outcomes and the longer-term impact of both approaches. In the first, parents had an individual meeting followed by a series of joint meetings. With an educative, therapeutic approach by the mediator, parents were supported to focus on the interests and wellbeing of their children and make arrangements accordingly. They were given generic information about children’s needs and interests at a time of separation. In the second, children were routinely offered a meeting with a trained child consultant after a first joint mediation meeting with parents. They were given an opportunity through discussion, play and drawing to explore what the separation had been like for them and their fantasies, fears and wishes in relation to it. Children did not attend their parents’ mediation sessions and were not asked to make decisions relating to future arrangements. Instead, feedback was given by the child consultant at the next joint mediation session, after which mediators incorporated messages identified by the child into the ongoing mediation. A  similar educative, therapeutic approach was adopted to work with parents, but in this approach the information provided to them was much more specific to the needs of their own children. At the same time, parents had access to additional support and cooperative parenting resources. While both approaches demonstrated clear improvements, the childinclusive approach had added benefits. The model both aimed to provide an opportunity for children to debrief and, coming early in the process as it did, ensured that their interests were as much part of the issues for mediation as those of their parents. The researchers found that this increased parents’ understanding of their children’s needs as a result of their separation. McIntosh and Long (2006: 18) described the role of the child consultant as ‘both an ally for the children, and a support for the parents’ capacity to reflect sensitively on the needs of their children’. Other findings addressed many of the concerns raised by researchers about children’s experience of separation. Following mediation, there was less acrimony and more alliance between parents; children were 189

The voice of the child in family mediation more satisfied with the arrangements made and found that parents were more ‘emotionally available’ for them. The arrangements put in place were more durable and contact with the non-resident parent was more likely to be maintained. There were notable benefits to the relationship between children and the non-resident parent, the majority of whom were fathers. Implications for practice Both legislative developments and research therefore served to focus the attention of practitioners6 and professional bodies on children’s wishes and feelings.7 From the mid-1990s, National Family Mediation had distinguished between indirect consultation (seeking to understand the views of young people by working with parents’ knowledge of their own children in mediation) and direct consultation (involving directly children as part of the process). Training courses in direct consultation of children were being delivered at this time, though – unlike the broad, open-ended approach of the Scottish pilot – ‘direct consultation’ was defined specifically as ‘an information gathering exercise, which will inform parental decision-making during their mediation work in a “task” oriented process’.8 Direct consultation was to be used in situations where this information was not available through indirect work with parents or where it was not ‘readily available to parents from their own knowledge and experience of their children’.9 This definition is clear in its aim to assist parents rather than primarily providing an opportunity for children. The stance has, however, been criticised for its lack of focus on children’s needs, together with the risk that, in the pursuit of information that is not available to parents due to the ongoing conflict between them, children could implicitly be made responsible for providing missing information or proposing solutions which their parents are not capable of supplying. The training made strong links between this model of child consultation and the central features of the Children Act 1989 (ie, a real consideration of wishes and feelings). It also took account of research findings that stressed the need for confidentiality for children, respect for their views and the importance of a conversation rather than interrogation. It allowed for the possibility of moving beyond a task-oriented process to facilitating improved communication between family members. Nonetheless, it recognised indirect consultation as the norm and carried a strong mediation rhetoric that is still very much alive today: that parents, rather than mediators, are the experts in respect of their own children. The policy and practice guidelines issued by the UK  College of Family Mediators in 200210 (now the College of Mediators) described two aspects of the mediator role: to encourage parents to talk with and listen to their children, and to help them consider the ways that this might be achieved. By doing so the policy recognised the statutory requirement for publicly 190

The current picture funded mediation that there be arrangements in place to ensure parties are encouraged to consider the welfare, wishes and feelings of each child; and also whether and to what extent each child should be given the opportunity to express his or her wishes and feelings directly in mediation. The policy remains explicit that this is a support role which should recognise ‘the priority that is attached to parents themselves, rather than any professional, consulting their children’ (p2, footnote 4). The document highlights the ‘delicate balance to be achieved’ in having to consider the varying needs of individual family members, while trying to maintain a focus on future cooperation and enduring family relationships. It reminded practitioners of the multiple rights of children as set out in the UNCRC: rights to care, protection, direction, guidance and consultation. Yet while children may experience varying needs for counselling, access to information, advocacy and representation, the policy document states that ‘family mediation cannot be a substitute for this wide range of services’, and that ‘there must be no confusion either, between family mediation and other interventions that involve children such as therapy, social work, counselling, advocacy etc’. The policy made a major contribution to the development of practice by introducing clear terminology by which to describe the diverse approaches that had been practised until that point. The introduction of the word ‘consultation’ conveyed, with a new clarity, the importance of gathering views, whether directly or indirectly, without removing responsibility for decision making from parents. From the practice perspective, a distinct model had by now emerged11 and training continued to be developed. A handful of services experimented with an approach that was closer to the Australian model. However, most practitioners who saw children tended to do so later on in the process and when it was determined to be appropriate so. The greatest variation in UK practice in this period was not so much the model used as when and whether mediators met directly with children, with some mediators feeling much more confident to do so than others. While the policy developed by the College defined children’s involvement more clearly, it also identified the limitations of practice within the framework of mediation as a newly formed profession still finding its own identity.

The current picture Child-inclusive mediation Further research in the last decade continues to highlight the same aspects of the debate. Fortin et al (2012) conducted a study involving adults looking back on their experience of separation and divorce as children. The key themes to emerge were consistent with previous projects: children’s autonomy; their ability to survive and adjust; their need for explanation as well as consultation; and the importance of tailor191

The voice of the child in family mediation made arrangements for individual children. Other studies continue to highlight the increasingly complex nature of family life and the diverse ways in which children are raised.12 Fortin also pointed out the discrepancy between children’s and parents’ perceptions of their needs, and argued the importance of the quality of family relationships before separation. Mediators, as facilitators of communication, are well used to addressing differences in perception and directly involving children in the process can be a feasible way to achieve this. However, tackling the wider question of family dynamics before and after separation and endeavouring to facilitate a collaborative decisionmaking process where one did not previously exist raise challenges that go beyond a short, focused intervention such as mediation, and are more akin to family therapy. Moreover, while direct consultation in mediation can offer children an opportunity to talk to someone and perhaps to signpost them to other services, the wider need identified by respondents in the study for better support in making such decisions, and particularly in being helped to think through all options and potential outcomes, would go beyond the remit of a mediator and possibly jeopardise the professional relationship with their parents. Legislative developments within the civil justice system have continued to promote a non-acrimonious approach to decision making between separating parents. The Family Justice Review Final Report (2011), chaired by David Norgrove, argued that ‘[i]t should become the norm that where parents need additional support to resolve disputes they would first attempt mediation or another dispute resolution service’ (para 115). The Children and Families Act in 2014 endorsed this approach and introduced a requirement that any separating parent wishing to make an application to court should first attend a mediation, information and assessment meeting to hear about and consider the suitability of mediation. Child arrangement orders replaced contact and residence orders and were intended to be broader and more flexible. They employ much more neutral language, referring to whom a child ‘lives with’ or ‘spends time with’. These legislative changes reinforced the emphasis on parental agreement and the continued involvement of both parents in their children’s lives. The need for better information was recognised and is being addressed through initiatives such as the Separated Parents Information Programme, devised by the Children and Family Court Advisory and Support Service and delivered to groups of parents with a follow-up booklet of advice and suggestions. There is a marked increase in online information such as ‘Sorting out Separation’, which is part of the Government’s Help and Support for Separated Families Initiative.13 The Family Justice Young People’s Board (FJYPB), a sub-group of the Family Justice Board, advises on projects to support children and young people experiencing the family justice system. One aspect of the FJYPB’s involvement has been the Voice of the Child Dispute Resolution Advisory Group, set up in 2014 by the Minister of State for Justice and Civil Liberties to focus on child192

The current picture inclusive practice within the whole of the family justice system. The Group made several recommendations, some of which challenged previous thinking and practice. The first of these was the adoption of a ‘non-legal presumption that all children and young people aged 10 and above should be offered the opportunity to have their voices heard directly during dispute resolution processes, including mediation, if they wish’. The Group recommended that mediators provide ‘child-inclusive’ mediation either themselves or through another appropriately trained mediator, and called for greater regulation of training, assessment and competency to meet with children. The idea of active encouragement to involve children was therefore strengthened to a requirement to make known the possibility of a direct meeting. The introduction of new terminology also subtly refocused the emphasis on inclusion. Recommendations 15, 16 and 19 were more controversial, proposing that mediators be responsible for assessing Gillick competency14 and offer to meet with children with or without their parents’ consent. These recommendations raised serious concerns about the mediator role and seemed to imply a retrograde step which might once again blur the boundaries between different professionals operating within the family justice arena. Marian Roberts (2016) comments that: ‘Parents’ decision-making authority would be undermined and family mediators would be expected to carry out a range of new professional tasks to include those requiring sophisticated psychological and therapeutic clinical skills associated with the functions of child assessment, welfare investigations, family therapy, counselling and advocacy.’ While the recommendations of the Group were aimed at professionals working across the family justice system, the suggestion of meeting children without parental consent raised fundamental questions for family mediators concerning their primary client group. In practical terms, how could children even be invited without parental consent? And what would be the likelihood of parents who are possibly angry, upset or threatened by their child’s involvement returning to mediation? The Family Mediation Council (FMC), recognised as the umbrella representative body for family mediators since 2007, endorsed the majority of these recommendations, but did not accept the conducting of Gillick assessments or working without parental consent. A collaborative working party was established consisting of training providers across the sector and initiated by Lisa Parkinson, an active campaigner for the involvement of children in mediation. The group defined the aim of childinclusive mediation as: ‘provid[ing] opportunities for children and young people to have their voices heard directly during the process of mediation, to help them feel respected and listened to and, at their request, to assist parents or carers to receive, understand and take account of 193

The voice of the child in family mediation the child’s messages and/or suggestions regarding decisions and arrangements for the child.’ The Group introduced new competencies for a child-inclusive mediation practitioner and specified training requirements for all mediators. The standards, also reflected in the College of Mediators’ latest revision of policy and practice concerning children and young people (revised April 2019), acknowledge the shift in expectation that a meeting with children is routinely discussed while still maintaining the role of a mediator as a facilitator of communication for parental decision making. They reinforced the core principles of confidentiality, voluntary participation, impartiality and party determination.15 As I found in my study of mediators working across several different contexts conducted in 2014, these principles are crucial to the understanding of the unique nature of the mediator role and reinforce the professional identity that has steadily developed over the last 40 years. Children’s agency The research findings over the last 30 years offer a consistent picture of the needs of children and young people whose parents are separating. They indicate a need for clear information; for continuing relationships based on care and respect; for emotional support; for a safe forum in which to express their views and to participate in discussion without the responsibility of decision making. Many of these findings have found their way into mediation ‘rhetoric’. In training and in practice, mediators give participants messages such as that ‘an ongoing relationship with both parents is, in most situations, in the children’s interests’; that ‘if parents can get it right, the children can adapt’; and that ‘parents are experts in their own children’. On the one hand, the principle of parental expertise upholds one of the key principles of mediation – that of party determination and the role of mediator as a facilitator rather than a problem solver. On the other, it could be argued that it overlooks a key message implicit in the research that children might equally be described as experts in their own family life. From the early days of family conciliation, there have been professionals who have argued that there are parallels between mediation and family therapy, and who point to skills and approaches that are transferable.16 This chapter has attempted to demonstrate that over the last 40 years, our understanding of the impact of separation and divorce on children has altered. I suggest that this change in perception can be summarised as a shift from viewing children as victims to survivors, to agents who are capable of acting with autonomy. The developments and the debates outlined here have also raised the question of the role of a family mediator in relation to children, and pointed to the importance of maintaining ‘the integrity of a distinctive process of dispute resolution with its own identity, principles and characteristics and its own distinctive benefits to the public’ (Roberts 2016). 194

The current picture Smart, Neale and Wade (2001) discuss the concept of ‘asymmetrical reciprocity’, which they define as the ability to hold and voice views with no assumption that they will be the same – a stance ‘which requires respect, fairness and care, not exclusion and secrecy’ (p104). This is something, they suggest, that parents and children are capable of. It seems to point to an immediate link with mediation as a process which supports transparent communication and the exchange of views with the purpose of negotiating an agreement. It requires a willingness to verbalise individual concerns while being open to those of other participants in a spirit of wishing to move out of conflict. Gulliver (1979: 70ff) takes a broad view of negotiation and adds a sense of ‘discovery’ to these aspects. He describes it as a learning process in which parties interact together to find an agreement by exchanging information both directly and indirectly: ‘Negotiation is a process of discovery. Discovery leads to some reorganization and adjustment of understanding, expectations and behaviour, leading (if successful) eventually to more specific discussion about possible terms and final agreement.’ Roberts and Palmer (2005: Chapter 6) go further and describe the role of a mediator as being to support and encourage the flow of information so that parties can move through those stages for themselves – a concept that is not likely to be contentious among mediators. But Smart, Neale and Wade make another, more complex point: asymmetrical reciprocity requires the more powerful party in a moral conversation to be constantly aware of his or her own power. In the context of family decision making, children’s participation does not mean that parents relinquish responsibility; ‘[r]ather it means reformulating those responsibilities so that they do not obliterate children’s agency’ (Smart et al, 2001, 159). Here again, the role of the mediator as a third party with no vested interest in a particular outcome, but a remit to ‘balance power’ and ensure equal participation seems well suited to the task of facilitating reciprocity. Yet the implication of this is that the main participants in a mediation have now changed from a separating couple to a separating family with diverse needs. The question at the heart of the debate seems to be: who are the parties in divorce mediation – parents, or parents and their children? Reflecting on the development of practice standards developed by the UK  College of Family Mediators in 2002, Roberts (2014: 26) implicitly answers this and poses another question: ‘The policy question to be resolved was this: How can children’s perspectives best inform a process in which the parents are the ultimate decision makers?’ As with any negotiation process, one must ask who has the authority to make the final agreement. There are parallel examples of mediation practice where participants contribute information, but do not ultimately make the decision. A  speech and language therapist might deliver a report in a mediation concerning a child with special educational needs, for example. In a commercial mediation, any number of experts might be involved, but without the power to settle. The use of the word ‘consultation’ 195

The voice of the child in family mediation in the policy document of 2002 suitably reflected the status, as with these examples above, of participants with a significant contribution to make, but without the power to decide. In many ways this strikes the right balance between participation and respect for children’s views without the pressure of decision making and impossibly torn loyalties between parents. The recent thinking concerning child-inclusive mediation, however, seems to be calling for more. Unlike a professional contribution to a negotiation, there is more at stake for a child and his or her changing family life. Parents remain the primary client group in family mediation, with the authority and the moral and legal right to decide future arrangements. And yet the research studies have demonstrated the power of children’s autonomy and independence. In practice, though children may not have decision-making authority, they do have the power of veto and this power is not to be underestimated. Childinclusive mediation calls for a presumption of involvement that creates a new emphasis in family mediation. Some children may not wish to be involved; some parents may not consent; in some situations, meeting a child will not be appropriate. However, the starting point in childinclusive mediation is that their direct involvement should be routinely and actively considered at an early stage, rather than be regarded as an option that may emerge later in the process. It can be argued that it is in the whole family’s interests that there is early, meaningful involvement of children in mediation which not only constitutes a contribution, but also offers them the opportunity of being able to commit to plans their parents might make, having had their perspective taken into account. In this way, parental agreements can be more sustainable for the whole family. Child-inclusive mediation moves one step on, from consultation to involvement, and attempts to recognise the importance of a process that offers something for children as well as adults, while maintaining the essential parameters of the mediator role.

Conclusions Looking ahead, one wonders where these developments will lead. Researchers have noted the lack of any reference to legal rights by respondents in their studies. It would be interesting to discover how far this has changed, even a few years later. Increasingly, social discourse is framed in terms of rights, whether as consumers, service users or employees. The rapid advent of social media and online tools has increased access to information about entitlements, added immediacy to people’s expectations about how these will be fulfilled and created virtual support networks through which they may be championed. Children are no exception to these developments and access to these tools equips young people not only to have their own autonomy and agency, but also to be able to act on them. A  recent example is the Schools 4 Climate Action initiative, which has led children all over Europe to participate 196

Conclusions in organised strikes from school in the name of climate change.17 The tone of these events has been very much about young people acting to take responsibility for their future and this has been recognised in the political arena. 18 It would be simplistic to imply that this changing landscape does not bring another layer of complexity for children and young people. The presence of online sites such as Facebook means that parental conflict can be played out very publicly in ways that children may well witness and which can add to stress and anxiety. There is growing recognition of the need to support children to be resilient to the impact of this and other challenging aspects of their lives.19 However, a final reflection is that our view of children and their ability to deal with their parents’ separation continues to evolve. From victims to survivors to pioneers, we can expect children to be active in shaping the decisions that affect their lives. Nine-year-old Oscar provides just one example. Having experienced his parents embroiled in a bitter, ongoing court battle, he eventually asked to talk directly to the judge. Speaking on the Today Programme in 2017 (BBC Radio 4), he said: ‘I thought: “Well I should actually meet the judge considering the fact that this one tiny decision will have a massive and vast impact on my life and all of my childhood.”… I told him what I thought of the situation and what I, at the end of the day wanted, because it is actually about the child – in this case, me.’20 Oscar’s reasoning for his proactive role in getting to meet the judge was framed in terms of rights: ‘If it was an adult having people fight over who they would live with, he or she would want to know the person making the decisions. So, if an adult would have that right, why can’t a child?’ Oscar went on to become the youngest member of the FJYPB and remains an active campaigner. It is important to remember that the Voice of the Child Dispute Resolution Advisory Group made recommendations to professionals working across the whole of the family justice system, not just mediators. They, together with researchers, called for a level of advice, information and support for children which is more than mediators alone can provide. The latest advice from the College of Mediators and the FMC reminds mediators of the limitations of mediation practice and the core principles that keep mediators to their primary role as facilitators who support good communication and improved understanding with a view to better parental decision making. However, the landscape is shifting and increasingly mediators need to take account not only of parental authority to settle, but also children’s autonomy in action. Not all children would have the confidence or the desire to take the kind of action that Oscar took; but should they nevertheless be given the opportunity?

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Endnotes 1 See, for example, West and Farrington (1973) or Mays (1972) and Rutter and Madge (1976). 2 For detailed information on the research, see Wallerstein and Kelly (1980). 3 Robinson and Parkinson (1985), for example, argue for the application of a family systems approach to conciliation, using some family therapy strategies, albeit with limitations on the conciliator to influence decision making or offer treatment. 4 In 56 per cent of the cases where children were not seen, the decision was made by parents, their main reasons being that they felt they could speak to the children themselves or that the issues did not concern them. Where conciliators made the decision not to see children, the main reason was a feeling that they were too young. 5 Rodgers and Pryor (1998) reviewed over 200 research reports and concluded that parental separation should be viewed as a process rather than an event. Support for children was needed at various stages and though short-term distress for children was common, it usually faded with time. Only a minority of children were at higher risk of poor outcomes as a result. 6 Practitioners were by now known as mediators rather than conciliators. 7 Findings from Ogus et al (1989) and Walker (1993: 279ff) pointed to confusion among respondents as a result of the overlapping professional roles and ambiguous terminology used to describe different services. The term ‘mediation’ replaced ‘conciliation’ following the Report of the Conciliation Project Unit on the Costs and Effectiveness of Conciliation in England and Wales in 1989. 8 See National Family Mediation, ‘Consulting with Children in Mediation Training Course 1999’, p1. 9 See note 8 above. 10 This was a revised and extended version of the original which had been drawn up within the pre-existing organisation, the UK College of Family Mediators. 11 See Parkinson (2006) for more detail about the process of involving children directly. 12 See, for example, Moscati (2015), who has studied family breakdown among same-sex couples and the implications for children in a network of different relationships. 13 See www.sortingoutseparation.org.uk/about-this-website/, accessed 20 March 2019. 14 A tool which has its roots in medical treatment and is used to measure children’s maturity, their ability to make sense of options before them and their ability to give informed consent to a course of action. 15 Family Mediation Council, Standards Framework, Part 6, www.familymediationcouncil.org.uk/wp-content/uploads/2018/11/FMC-Manual-of-Professonal-StandardsRegulatory-Framework-September-2014-Updated-8.17-5.18.pdf, accessed 20 March 2019. 16 See, for example, the work of Walker (1988) and also Robinson and Parkinson (1985). In her article in 2002, Parkinson proposes that a family systems approach could be used by mediators to understand the changing structures of families in transition. She considers the use of an Ecogram to facilitate communication between family members, both old and new, and to enable them to make the emotional, psychological, economic, legal and social adjustments necessary. 17 The initiative began with 15-year-old Greta Thunberg in Sweden and has since seen tens of thousands of children across Belgium, Germany, Sweden, Switzerland and Australia hold their own demonstrations. The UK  Student Climate Network identifies four key demands: · The government should declare a ‘climate emergency’; · It should inform the public about the seriousness of the situation; · The national curriculum should be reformed to include ‘the ecological crisis’; and · The age of voting should be lowered to 16 so younger people can be involved in decision-making around environmental issues. For further details see www.bbc.co.uk/news/uk-47250424, accessed 26 March 2019. 18 For example, Nicola Sturgoen tweeted: ‘It’s a cause for optimism, in an often dark world, that young people are taking a stand on climate change … given the urgency, it is right that we are all challenged to do more and that we hear the voice of the next generation.’ See BBC website above.

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Endnotes 19 See, for example, the work of Bounce Forward, a registered charity that has pioneered the delivery of resilience training in UK schools and campaigns for this to become part of the national curriculum. It focuses on the importance of developing strong mental and emotional resilience to cope with stress and pressure to achieve. Building resilience incorporates realistic thinking, adaptive coping skills and social problem solving to enable children to reach their full potential. It focuses on the importance of soft skills and developing underlying competences of empathy, perseverance, durability, flexibility, hope, connecting and reaching out. Its training places an emphasis on understanding the concept of resilience and being aware of one’s own mental health, other people’s mental health and how to cope with it when it fluctuates. See www.bounceforward.com, accessed 31 October 2019. 20 See https://twitter.com/bbcr4today/status/920177156789100545 and www.bbc.co.uk/ news/uk-41603236, accessed 29 August 2018.

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References Allport, L  (2016) ‘Exploring the Common Ground in Mediation’, unpublished PhD thesis, Birmingham Law School, University of Birmingham. College of Mediators (2019) ‘The Voice of Children & Young People in Mediation: Policy and Best Practice Guidelines’. Dunn, J and Deater-Deckard, K (2001) Children’s views of their changing families (York: Joseph Rowntree Foundation). Emery, R  (1988) Marriage and Divorce and Children’s Adjustment (Newbury Park, CA: Sage). Emery, R, Sbarra, D and Grover, T (2005) ‘Divorce Mediation: Research and Reflections’, Mediation in Practice, May, 7–16. Fortin, J, Hunt, J and Scanlan, L (2012) Taking a longer view of contact: The perspectives of young adults who experienced parental separation in their youth (Brighton: The Sussex Law School). Garwood, F (1990) ‘Children in Conciliation: The Experience of Involving Children in Conciliation’, Family and Conciliation Courts Review, Vol 28 Issue 1 43–52. Garwood, F (1992) ‘Conciliation: A Forum for Children’s Views?’ Children and Society Vol 6 Issue 4 353–63. Gulliver, PH (1979) Disputes and Negotiations: A Cross-Cultural Perspective (New York and London: Academic Press). Hallden, G (1991) ‘The Child as Project and the Child as Being: Parents’ Ideas as Frames of Reference’, Children and Society, Vol 5 Issue 4 334–56. Hawthorne, J, Jessop, J, Pryor, J  and Richards, M  (2003) Supporting Children through Family Change: A  Review of Interventions and Services for Children of Divorcing and Separating Parents (York: Joseph Rowntree Trust). McCredie, G  and Horrox, A  (1985) Voices in the Dark: Children and Divorce (London: Unwin Paperbacks). McIntosh, J  (2000) ‘Child inclusive divorce mediation: Report on a qualitative research study’, Mediation Quarterly Vol 18 55–69. McIntosh, J  and Long, C  (2006) Children Beyond Dispute: A  Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution (Melbourne: La Trobe University). 200

References Mitchell, A (1985) Children in the Middle: Living through Divorce (London: Tavistock). Moscati, M  (ed) (2015) Same Sex Couples and Mediation in the EU (London: Wildy, Simmonds and Hill). Norgrove, D (2011) Family Justice Review Final Report (London: Ministry of Justice, the Department of Education and the Welsh Government). Ogus, A, Walker, J, Jones-Lee, M, Cole, W, Corlyon, J, McCarthy, P, Simpson, R and Wray, S (1989) Report of the Conciliation Project Unit on the Costs and Effectiveness of Conciliation in England and Wales (London: Lord Chancellor’s Department). O’Quigley, A  (2000) Listening to Children’s Views: The Findings and Recommendations of Recent Research (York: Joseph Rowntree Foundation). Parkinson, L (1987) Separation, Divorce and Families (London: Macmillan Education Ltd). Parkinson, L  (2002) ‘An Eco-Systemic Approach to Mediation with Families in Transition’, Context, October. Parkinson, L  (2006) ‘Child-Inclusive Family Mediation’, Family Law, Vol 36 483–88. Roberts, M (2014) A-Z of Mediation (Hampshire: Palgrave Macmillan). Roberts, M (2016) Interdisciplinary Influences on Mediation: Distinguishing Creative Innovation from Damaging Distortion – A Personal View (keynote speech at the College of Mediators annual general meeting). Accessed online at www.collegeofmediators.co.uk on 24 August 2018. Roberts, S and Palmer, M (2005) Dispute Processes: ADR and the Primary Forms of Decision Making (New York: Cambridge University Press). Robinson, M  and Parkinson, L  (1985) ‘A  family systems approach to conciliation in separation and divorce’, Journal of Family Therapy, Vol 7 357–77. Rodgers, B and Pryor, P (1998) Divorce and Separation: The Outcomes for Children (York: Joseph Rowntree Trust). Smart, C  (1998) ‘Children Talk Back’, The Journal of National Family Mediation, Vol 8 Issue 3 3–4. Smart, C (1999) ‘Post-divorce life is not necessarily a disaster area’, Family Mediation Gazette, Issue 6 23–24. Smart, C, Neale, B  and Wade, A  (2001) The Changing Experience of Childhood (Cambridge: Polity Press). 201

The voice of the child in family mediation UK  College of Family Mediators (2002) ‘Children, Young People and Family Mediation: Policy and Practice Guidelines’, revised and extended by the College of Mediators, 2006. Walker, J (1988) ‘Divorce and conciliation: a family therapy perspective’ in Street, E and Dryden, W, Family Therapy in Britain (London: Open University Press). Walker, J  (1993) ‘Co-operative parenting post-divorce: possibility or pipedream?’, Journal of Family Therapy, Vol 15 272–93. Wallerstein, J and Kelly, J (1980) Surviving the Breakup: How Children and Parents Cope with Divorce (London: Grant McIntyre). Walzack, Y  with Burns, S  (1984) Divorce: The Children’s Point of View (London: Harper and Row).

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Chapter 11

Mediation in children’s cases with a cross-border element– in particular, international child abduction, leave to remove and international contact Sandra Fenn, Anne-Marie Hutchinson and Angela Lake- Carroll

In this chapter we aim to provide an outline of the legal context in which child abduction cases are mediated, with particular reference to the 1980 Hague Convention on the Civil Aspects of International Child Abduction 1980 as implemented in the jurisdiction of England and Wales under the Child Abduction and Custody Act 1985.1 We reference the definition of ‘acquiescence’ and the need for international confidence in alternative dispute resolution in high-conflict cases where treaty obligations are engaged. We also briefly outline some of the history of and context for the introduction of mediation in international parental child abduction cases. We further describe and explore the Reunite model of mediation practice, and reflect on the experience gained from the establishment and operation of the scheme. This includes focusing on and working within the reality of the situation, and encouraging parents to consider the best interests of their children in high-conflict situations with an international element which are also subject to the strict time constraints laid down by the Hague Convention. We consider how this may contrast with the use of family mediation in domestic cases. Some commentary in relation to the known effects of parental child abduction and the application of the law and legislation – both for parents and, importantly, for children and young people who are subject to abduction – is also considered, including reference to how the child’s voice may be heard. Finally, we discuss the use of new technologies in assisting the mediation process where conventional mediation is not possible or practical.

The legal context The adoption of the term ‘international child abduction’ across jurisdictions can be traced back to the work of the Hague Conference, which concluded

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Mediation in children’s cases with a cross-border element in October 1980.2 The major aim of the Convention is to ensure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state that is not their country of habitual residence. Since the Convention was drafted, law, legislation and procedure have continued to be reviewed and refined so that there is clarity in terms of the legal framework surrounding cases of international child abduction.3

Time constraints Child abduction proceedings are subject to strict time constraints: proceedings for a return order must be completed within six weeks of the date of application. Additionally, Family Procedure Rules Practice Direction 12F specifies the same time limit for non-convention abductions, save where exceptional circumstances make this impossible. The President’s Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings (March 2018) has been formulated to ensure that cases are managed in a manner which facilitates these time limits. It is essential, therefore, that any mediation model that is followed is capable of operating within these time limits. In England and Wales, the Child Abduction Mediation Scheme operates in parallel with, but independent from, the court proceedings.

Relevant articles of the Hague Convention In discussing the use of family mediation in child abduction matters, it is essential to understand the relevant articles of the Hague Convention that provide the legal and legislative framework within which any mediation scheme must also operate. While mediation is not a legal process or procedure, mediators must be aware of and alert to what the articles set out, how that has been translated into legislation and the relevant procedures and practices, so that they can work cohesively with the requirements of law and procedure, but at an independent distance therefrom. The 1980 Convention (Article 7 c in particular) sets out the state’s duties to provide mechanisms for the consensual resolution of cases and may thus be said to provide a clear direction in relation to the use of mediation or other means of bringing about an ‘amicable resolution’.4 Article  10 provides that: ‘The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.’ In some states an attempt at voluntary return is made at the inception of the process and prior to the commencement of any proceedings. In England and Wales, good practice would dictate that the proceedings be 204

Relevant articles of the Hague Convention issued first and the mediation process take place against the backdrop of the ongoing court proceedings. Article 13 – acquiescence Article 13 provides that: ‘notwithstanding the provisions of the preceding article the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution or other body which opposes the return establishes that:the person, institution or other body having care of the person of the child had …consented to or subsequently acquiesced in the removal or retention.’ It is essential, therefore, that any mediation model maintains international confidence and is robust in ensuring that by entering into mediation, no attribution of acquiescence to the removal or retention may be inferred. Supporting this, Paragraph  11 of the President’s Guidance makes clear that entering into mediation will not ground a defence of acquiescence. It is essential that mediation privilege and the rules preventing reference to anything that is said in mediation are carefully preserved. In this regard, reference should be made to a recent decision of Mr Justice Williams in child abduction proceedings:5 ‘I  would also wish to make some observations on the issue of the confidentiality of the mediation process given the arguments deployed in the written arguments that the cloak could be withdrawn even where there is an express term of confidentiality in the mediation agreement. The mediators’ surprise at that suggestion is evidence in their communications. The availability of mediation in the intense crucible of post-abduction family relations is a vital part of the first aid kit that can be used to heal the damage created by abductions. The fact that two highly regarded mediators were given the impression that expressly confidential mediation might be subject to disclosure to the court alarms me. If experienced mediators become unwilling to mediate because even when within a written agreement they might be called to give evidence they may cease to mediate. That would be a huge loss.’ The Convention therefore provides a robust procedural framework with clear time limits for dealing with cases of international child abduction. This framework is further enhanced by the Practice Direction and now by the President’s Guidance in relation to case management. 205

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The socio-legal context and the introduction of family mediation The establishment of the Hague Convention and the rules and procedures that flow from it reflect the fact that international child abduction has become a worldwide problem that affects an increasing number of families. As of March 2019, 100 nations are signatories to the Convention, reflecting perhaps the increase in cases of international parental child abduction. As is noted by Paul and Kiesewetter:6 ‘In 2013, in figures published by the then UK Government it was noted that the number of parental child abductions cases dealt with by the Foreign Office had risen by 88% in under a decade7. This was not new in terms of the numbers of cases, cases of parental child abduction had been rising during the 1980s and 90s and led to the establishment of a Parliamentary Working Party on Child Abduction at the end of 1990.’ It is interesting to note that the Council of Europe Committee of Ministers made recommendations in 19988 concerning the ‘need to make greater use of family mediation’, while also recognising the ‘growing number of family disputes’. Principle VIII of those recommendations specifically addressed the need for states to consider ‘setting up mechanisms for the use of mediation in cases with an international element when appropriate, especially in all matters relating to children, and particularly those concerning custody and access when the parents are living or expect to live in different states’. In Reunite’s experience, children are abducted or retained by a parent in another jurisdiction for many reasons. These include the breakdown of a relationship and the wish to return ‘home’ for family support in one parent’s country of origin; the desire for a perceived better future in another country; an attempt to escape an abusive relationship or an unfamiliar culture; or the formation of a new relationship with a person from another country. In some circumstances ignorance of the law, fear, lack of money for legal advice and language barriers may hinder access to the courts in a certain country and contribute to children being abducted or retained by a parent. There is limited research on parental child abduction and especially on the long-term effects thereof, both for parents and for children and young people, as compared to, for example, the effect of domestic separation or divorce – especially where there are disputes between parents with regard to the future co-parenting of their children. The available research evidence,9 although often based on small research samples, provides consistent evidence from successive studies of parents’ concerns about the lack of specialist advice that is easily accessible to those in urgent need and the serious consequences of this; issues around 206

Mediation in international child abduction matters post-abduction contact for the child with an abducting or left-behind parent; and the adverse effects for parents, for parental relationships and, most importantly, for the child, with these effects potentially lasting into adulthood and affecting life prospects, mental health and well-being.

Reunite Reunite was formed in 1987, initially as a parent support network formed by parents who were endeavouring to or who had navigated their way through the law and legal procedure relating to international parental child abduction. It aims to provide information and access to advice, support and mediation for parents seeking to resolve family challenges when living across international borders, especially where there is a risk of or has been abduction of a child or children. The organisation is now recognised as the leading UK charity specialising in international parental child abduction and the movement of children across international borders, and offers the only telephone advice line in the UK. The advice line provides practical, impartial guidance, information and support to parents, family members and guardians who have had a child abducted, as well as to parents and guardians who may have abducted their child. It is therefore unique in providing support and assistance for both ‘taking’ and ‘left-behind’ parents and guardians. Guidance, information and support can also be provided to parents who may be concerned about the risk of abduction, along with assistance and advice on international contact issues and cases of ‘leave to remove’. One of the findings of the Home and Away research report on the work of the 1990 Parliamentary Working Party on Child Abduction was to identify that child abductions could be prevented by the availability and use of a helpline for parents.10

Mediation in international child abduction matters To provide a greater understanding of the background and context which have informed Reunite’s position in the provision of services relating to international child abduction: in October 1990 a Parliamentary Working Party on Child Abduction was formed in response to the rising number of children being abducted by a parent and taken overseas without the consent of the other parent. This group was administered by what was then ‘reunite: National Council for Abducted Children’, with representation from the All-Party Group on Child Abduction, the National Association of Family Mediation and Conciliation Services (now known as National Family Mediation), the Scottish Child Law Centre and Reunite. The report set out five major recommendations:11 secure government funding should be provided; existing mediation, advice and counselling services should receive greater publicity (emphasising their respective roles in the prevention of disputes concerning children); mediators should receive training in the relevant law and the causes and consequences of child abduction; mediators should be drawn from a wider range of ethnic and 207

Mediation in children’s cases with a cross-border element cultural communities (and the significant role that interpreters might have to play in some circumstances should be recognised); and the need for and feasibility of a European project similar to Child Find USA,12 to deal with both actual abductions and impending cases, should be explored (taking into account the differences between the US federal structure and the geopolitics of Europe). In 2000 Reunite identified that parents who were the subject of child abduction proceedings following a parental child abduction still had little or no opportunity to discuss what was happening and to think about how they might resolve the situation for the child’s benefit, other than through adversarial court proceedings. The legal system is limited by the parameters of applicable law and procedure; and while in family matters the courts do all that they can to consider the psychological and emotional impacts for parents, and especially for children (applying the Children Act paramountcy principle),13 they are essentially bound by the law and legal norms. It became clear from the work already undertaken by the Parliamentary Working Group and from available research evidence,14 together with the recounted experiences of parents, that once proceedings began, parents often felt that matters had escalated beyond their control. They felt variously confused; alienated and polarised from the other parent; and often very fearful of what would happen once a judgment was reached. The speed at which proceedings escalated – although necessary to bring about an early resolution where children had been removed – was also an additional concern for parents, who were left feeling that matters had moved beyond their immediate control and progressed rapidly to a conclusion over which they had little input. As a result, the organisation considered how and whether the use of family mediation might have application in this context. At first sight, mediation might not seem possible or perhaps appropriate for parents caught in what might be regarded as a most conflictual and polarised situation – with additional concerns relating to power imbalances, the confidentiality of the process, and safeguarding risk and autonomous parental decision making ‘in the shadow of the law’15 where child abduction proceedings are underway. For these reasons, the original project group which considered the potential for a pilot in child abduction mediation had a considerable task in planning for and establishing a scheme that would work within the known principles of family mediation (recorded in a Code of Practice in the UK established by the then UK College of Family Mediators); that would be workable in other international jurisdictions within the legal and procedural requirements of Hague proceedings; and that would protect the rights and responsibilities of parents and, most importantly, protect and promote the welfare of children who are subject to child abduction. As part of the planning process, funding was secured from the Nuffield Foundation for a three-year pilot project, during which time the organisation would develop and trial a mediation scheme for use in cases 208

Mediation in international child abduction matters of international parental child abduction where a child had been abducted to or retained within the UK, and where the applicant parent was pursuing the return of the child under the 1980 Hague Convention. The research aimed to identify whether there was a place for mediation in international child abduction matters and whether this could provide a realistic, practical addition to the court process, while at the same time working in legal conformity with the principles of the Hague Convention. After developing an initial practice model for mediation,16 specialist mediators mediated 28 cases of international parental child abduction to test the model’s effectiveness. In these 28 cases, 75 per cent of parents were able to agree on a memorandum of understanding (MOU) focused on the best interests of the children and on ensuring that the children continued to have a positive relationship with both parents and their extended family, thus avoiding a court-enforced decision and future litigation.17 These cases were followed up in later years and the feedback from parents showed that the resulting consent orders had stood the test of time, and that the parents appreciated the chance to mediate their issues.18 The organisation has continued to provide a mediation service in cases of international child abduction where there are Hague proceedings initiated at the High Court, in cases of an Article 21 Hague application for contact and in cases of an application for permanent removal of a child. All mediators working under the auspices of Reunite are accredited registrants of the Family Mediation Council (FMC), which now acts as the voluntary regulator for family mediators in England and Wales. The FMC introduced a framework for professional standards and self-regulation19 in 2015, which recognises child abduction as a specialist area of mediation that requires additional training and qualification. In addition, some Reunite mediators are members of the European Network of CrossBorder Family Mediators. The organisation also maintains links with other European and international mediation and advice providers in child abduction and cross-border family disputes, and routinely exchanges information on good practice principles with them.20 In 2010 Reunite became a contracted provider of legal aid. This is an essential component of the mediation service that it provides in international child abduction cases. Since April 2014, the Legal Aid Agency has provided automatic non-means, non-merits tested legal aid to all applicant parents in Hague Convention child abduction and contact cases, and to qualifying defendant parents. Many defendant parents are also offered pro-bono assistance with mediation where legal aid is not available to them or where they have no other means to fund use of the service. In 2016 Reunite proposed a further pilot scheme for international child abduction mediation, whereby specialist mediators would provide a physical presence within the High Court to give parents the opportunity 209

Mediation in children’s cases with a cross-border element to speak with a mediator at an early stage. In 2018 a protocol was published by the President of the Family Division as new Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings.

Establishing a mediation model for international child abduction A  central aim of the mediation scheme is to provide parents with the opportunity to step back from the court actions to consider together the best interests of their children and the future of their family life. In the face of escalating proceedings, it is difficult for parents to move from adversarial thinking to a focus on what can be achieved to resolve matters, and to reopen or re-engage in parental communications for the benefit of the children. Whether a parent has abducted or is the left-behind parent, there is a level of trauma for both which is not aided by the unfamiliar and often frightening intervention of proceedings, and they can feel powerless and confused as to what is happening and the possible outcome. Although the Hague Convention offers the protection of the law and a swift response to a traumatic situation, it cannot provide the means to ensure an outcome from which the parents have the chance to recover their shared parental role or to re-establish the means by which they can constructively and positively parent together. In reflecting on the genesis and operation of the scheme, it was and remains essential that any family mediation process offered for international child abduction matters operates to the established principles required of family mediation per se, in a structured form that provides a protective and safe environment for participants and, importantly, that works alongside the framework of the Hague Convention legal proceedings and timetable, while remaining an independent adjunct service for parents. In establishing a model for practice, a number of key components were identified as critical. Among other things, mediators should adhere to the principles of family mediation as established in the England and Wales jurisdiction; should be conversant with the Hague Convention and the legal procedures which flow therefrom; and should be aware of jurisdictional differences, consideration of which may form part of any proceedings. In considering what knowledge mediators require in the legal aspects surrounding child abduction matters, it was also found that mediators need not be qualified lawyers. Family mediators in domestic matters are similarly identified as requiring legal knowledge, but not having to be lawyers. Whether mediators are working with domestic or international situations, they should be conversant with relevant law and procedures, and able to provide information to parents who choose to mediate. Issues relating to safety and appropriateness are also critical to any offer of mediation. It was further agreed that two mediators should generally 210

Screening and assessment work as co-mediators, to ensure effective management in complex and high-conflict situations, to assist with maintaining balance in discussions, and to provide an effective team approach that serves the needs of parents and ensures effective support between the mediators, who will be working in an intensive way and in an exacting environment. In order to work effectively within the timetable for proceedings, the mediators will need to explore the most effective pattern for meeting with the parents. Finally, where agreement can be reached between the parents, it is essential to draft an MoU setting out legally privileged proposals on which the parents can seek individual legal advice before asking the court to confirm the proposals in a consent order.

Screening and assessment In order to ensure that the mediators adhere to mediation principles and are working within the requirements of the President’s Practice Guidance in International Child Abduction Proceedings, and that the welfare of both children and parents in international cases is appropriately protected, the scheme’s mediators undertake a robust assessment and screening process with individual parents, regardless of what safeguarding checks may have been carried out as part of the proceedings. This is because of the issues discussed earlier in relation to the context for mediation in child abduction matters – including, but not limited to, the fact that that mediators will be managing complex imbalances of power which may add to the volatility of the situation as between the parents; that controlling or abusive behaviour may be a feature of what led a parent to abduct (and which may include an attempt to escape from, for example, a harmful practice affecting a child or young person); that the situation for either parent may affect his or her ability or capacity to take part fully and freely in the mediation process; and/or that one parent may plan to use the mediation process to further abuse the other where there is or may have been a long-lasting pattern of abuse or control within the relationship, or where one parent may have made threats to the other about a refusal to mediate. The organisation and its mediators have continued to refine their screening and assessment procedures to match the known issues that may arise for parents in international child abduction cases. The importance of screening and assessment is now set out in the new Practice Guidance issued by the President of the Family Division,21 which includes clear direction in relation to the court having due regard to the appropriateness of encouraging the parties to mediate. The Appendix to the Practice Guidance relating to the Child Abduction Mediation Scheme repeats and reinforces the importance of proper screening and assessment, and describes what the mediators must have regard to in carrying out any screening interview (including whether the mediation itself can be carried out safely), and how and when such an interview will be carried out.22 211

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The Reunite mediation process The objective of mediation in international child abduction is to provide the parents with a chance to step back from the court actions, both at home and abroad, to engage with each other and make their own informed decisions together in the best interests of their children. They must do so having full regard to the principles and procedures required by the Hague Convention.23 The ‘six-week rule’24 that applies from first application to the Central Authority to the final orders means that all preparation for and the mediation itself must be organised and take place quickly and efficiently, as it is imperative that mediation does not hold up the court process. As this is the case, any mediation must take place between the directions hearing and the final hearing. Mediators engaged in international family mediation must be very experienced; have the ability to engage with parents, both individually and together; and be well versed and experienced in key mediation skills. They must be able to create an environment for discussions that, while taking full account of the proceedings, provides a structure to assist parents in focusing on the best interests and future welfare of their children. They must establish a level of trust with parents that allows them to talk openly about their hopes and concerns for the future in the context of their culture or community, and often through an interpreter. Practice in the original Reunite pilot project established that, with careful and effective management of time, a mediation process can be completed to a drafted MoU within nine contact hours. Very few successful mediations are accomplished in less time and to try to do so would be a disservice to both the children and their parents. In order to accomplish this, ideally three three-hour co-mediated sessions are held over two days.25 It is also explained that children’s voices, if appropriate, can be heard by allowing them to speak either directly with a mediator or via an interview with an officer of the Children and Family Court Advisory and Support Service (CAFCASS). In cases of international child abduction, as in domestic mediation, Reunite mediators follow the requirements of the FMC  Code of Practice, which emphasises the importance of offering children and young people the opportunity to have their voices heard directly during the mediation if they wish.26 Clearly, Reunite mediators have a particular responsibility to appreciate that children who have been abducted are likely to be traumatised and confused, and will have a heightened awareness of the conflict between their parents. They may also be very aware of the consequences of anything they say for either parent or may be concerned to protect one parent from the other. Conversely, they may be angry about their parents’ actions and the consequences visited on them as a result. Unlike in domestic mediation, the court may play a more immediate and direct role in hearing the child’s views via a CAFCASS officer;27 or on 212

The Reunite mediation process occasion the judge may decide to speak directly with the child. Reunite mediators must be particularly aware of the implications of this for the child, the appropriateness (or not) of providing an opportunity for the child to share his or her views, and the ability of either parent to understand and accept what the child might share accordingly. They must also consider with parents whether the child is likely to understand that although he or she is being invited to provide a perspective, it will be for the parents or the court to make final decisions. The mediators must also remain mindful of ongoing proceedings and whether involving the child directly in the parental mediation process will dovetail appropriately with those proceedings; and must make the boundaries of confidentiality very clear to the child, to the parents and to legal representatives – including the fact that although the child is being invited to have a conversation as part of the mediation, he or she may latterly have a conversation with another professional about his or her wishes and feelings. As the child may also be physically outside the immediate jurisdiction, it is important for mediators to consider carefully with parents how any direct conversations between mediator and child can be arranged. Reunite mediators, in common with their domestic mediator colleagues, also provide information and explanations regarding balance and impartiality; the parents’ opportunity to reach their own informed decisions; access to legal advice; the confidentiality of discussions; and the privileged nature of any outcome and their ability to waive privilege if they so wish, in order to have any proposals considered by the court and agreed as a consent order. The mediators also check with individual parents that they understand that they do not have to mediate and that a decision not to do so will not affect their individual case; and that if they mediate but are unable to reach agreement, the case will be referred back to court for a decision to be made. Wherever possible and practicable, both parents are encouraged to attend mediation in person and, due to the timetabled sessions, mediation can be accomplished over two days, to take place prior to the final hearing date. Mediators working on the scheme have found that fitting in with an existing key date for parents can reduce stress, limit the costs for parents and increase the possibility that they can attend in person.28 In cases where English is not the first language of one or both parents, and/or where an interpreter is assisting, time is taken to check clarity and understanding with each parent. A  common difficulty for parents from other countries is understanding legal terminology such as ‘residency’, which is often taken to mean the jurisdiction or place of abode. As a result, the mediators have developed a lexicon of words and phrases to explain some of the more difficult terminology for parents. The use of interpreters remains a complex issue in mediation. Interpreters are not always or commonly conversant with the mediation process. They may not be used to working in situations of conflict. Unlike mediators, they may not be familiar with working in an impartial way – they may bring their own values or those 213

Mediation in children’s cases with a cross-border element of a particular culture to the mediation process. Their own social values may lead them to seek to remove or tone down what they may perceive as hostile comments. It is essential that any interpreter can provide a direct, literal interpretation of what is said, without seeking to ameliorate, dilute or remodel this. There can be dangers of the interpreter seeking to act as a form of ‘broker’ or intermediary between the two parties. For all these reasons, this is an area where mediators need to work extremely carefully, to ensure that any interpreter is clear about the principles, purpose and aims of mediation, the role of the mediator and his or her own role as interpreter. Recent research29 has considered the use of interpreters in civil justice and in mediation. The findings highlight the need for specific interpreting competencies in mediation. The research also considered the use of bilingual mediators and made some interesting observations on the additional pressures brought to bear on such mediators – for example, the dangers of being perceived as supportive of the individual whose first language corresponds with their own (which can also be an issue for nonbilingual mediators), and whether the need to interpret during the mediation may affect the mediator’s ability to remain focused on and reflective of his or her own role and on the progress of the mediation. Interestingly, the research also points out that many of the ethics and principles arising for mediators are also present in codes drawn up for interpreters by their professional bodies. The fact that interpreters are sometimes necessary also points to the lack of available mediators (certainly within the UK) who offer more than one language or – more appropriately still, given the multicultural nature of international marriage and couple relationships – who are drawn from diverse ethnic and cultural backgrounds. At the end of this session, the mediators summarise the discussions, and both parents are advised to consider these overnight and take the opportunity to discuss the situation and options with family, lawyers and other advisers before meeting again the following day to continue mediation in greater depth, with the aim of reaching an agreement. The second three-hour session starts with a short individual session at which each parent can identify any options discussed the previous day which he or she has decided are unacceptable for any reason, and any new issues or considerations that came to light during the previous discussions. This shuttle session is once again followed by joint feedback.30 In both meetings the mediators must ensure that the parents are helped to think through the reality of everyday living for their children and for the family as a whole. As in domestic mediation, parents have a great deal to consider in setting a framework for their future parenting. For parents who will be raising their children in different countries, in addition to considering their parental responsibilities in relation to their children’s education and health, and age-appropriate arrangements for their children as they grow and change, they must further consider rights of residence; the availability of visas, green cards or similar; rights to benefits; and travel costs (whether for the children or for an accompanying parent) and 214

The Reunite mediation process whether these are to be offset against child support. As in domestic cases, they will need to think about ‘handover’ arrangements for the transfer of children between parents, which in international cases will often involve other responsible adults or a third specified person. In the case of international parenting, this may involve an escort and/or that flight staff take responsibility for handover at a specified airport. Consideration must also be given to how the child will maintain contact with one parent when he or she is with the other; and how to address holidays, birthdays, Christmas and other celebrations, including those which may relate to the child’s religious or cultural upbringing. Christmas (or other pertinent faith or cultural celebrations) may become highly contentious; and although both parents may agree to alternate this twoweek period, they may have great difficulty in agreeing on where the child will spend the first Christmas. Just as in domestic mediation, parents will need to think about holidays; but in this case, it may involve taking a child to a country which is not a signatory to the Hague Convention. Where this is or may be the case, the mediator must also be alert to the potential consequences of such an agreement. Absences from school must also be considered; school terms in different jurisdictions are not necessarily coterminous and different countries have different rules about the removal of children during term time. Both parents should be aware of the local policy for removing the child from school for periods of contact to fit within work schedules. A school calendar showing holiday dates is essential, so that at least the first year’s contact dates can be fixed and parents can see exactly what this contact will look like in reality, including taking account of the child’s needs in terms of his or her own friendships and social community, as well as practical matters such as time to recover from a long-haul flight before returning to school. It is also important that each parent can keep in touch with the child’s progress at school, so how this can be arranged – either between the parents or with the child’s school – is also an important consideration. Medical treatment is another critical factor: parents need to agree what will happen if the child requires emergency treatment with either parent, and what happens if he or she has ongoing health or medical conditions or medication to manage. Most parents also need to agree to indirect contact with the child or each other by means of Skype, Facetime, email or similar. They may also wish to discuss suitable call times and the availability and costs of any necessary additional devices for the child (eg, mobile phone, tablet). Finally, the parents may need to consider agreeing contingencies so as to build in flexibility to cover unexpected or important events without breaking the consent order. Many of these points will be familiar to family mediators; the difference for parents trying to reach an agreement in an international child abduction matter is the cost and complexity of living across borders as separated parents. Careful consideration should be given not only to the practicalities 215

Mediation in children’s cases with a cross-border element of day-to-day living and parenting, but also to any proceedings, protocols, laws or customs in the other jurisdiction that may be involved. Further exacting considerations for both parents and mediators include the fact that once the Hague application for return is dropped and jurisdiction conceded, it cannot be revived, except in very exceptional circumstances; and the challenges faced in changing a court order except by agreement of both parties. Clearly, there is also a time pressure involved, and the mediators must ensure that available time is carefully structured and managed to avoid the parents feeling pressurised into decision making. As in any mediation, the parents and mediators will work towards identifying an outline agreement that takes full account of all issues, testing the realities and practicalities, and keeping in mind the requirements of the proceedings and what the court will approve. If an outline agreement is feasible, the third session will then be spent drafting the MoU. If no agreement is reached, then the matter is continued in court, without any reflection on either parent. The MoU must be written in such a way that it protects both the parents and the child, and must therefore take into account laws and customs in foreign jurisdictions and any other existing conventions or protocols. Working together with the mediators to formulate the final MoU can be a very powerful experience for parents, assisting them in re-establishing a working relationship together as parents. Any mediators involved in these cases must have a thorough knowledge of all conventions and protocols between each jurisdiction, and the manner in which they are interpreted within those receiving states. They must be able to recognise where potentially difficult situations may arise within the proposed agreement, and to signpost parents to further legal advice or the Reunite advice line where appropriate. Many parents who do not qualify for legal aid are litigants in person and need access to good advice when planning an agreement in these very complex circumstances. Without this knowledge, one or other parent may well find that a mediated agreement could place both himself or herself and the mediators in an intolerably difficult position, including where the mediators may need to discontinue the mediation to protect one or both of the parents from making an unwise agreement. The draft MoU is prepared and given to each parent in time for them to read and fully consider the contents. Comments and questions are encouraged from both; and they are reminded that once the MoU is made into a court order, it will be binding, so any outstanding doubts should be addressed and discussed at this point.31 The Reunite model for mediation has provided valuable evidence of the potential for and use of mediation in what are doubtless some of the 216

The Reunite mediation process most highly conflictual, emotionally sensitive and practically difficult circumstances for both parents and children. The Child Abduction Mediation Scheme has been framed within the parameters of Hague proceedings. Mediators deal with the arrangements between parents only where international child abduction has been a feature of the issues between them and has prompted High Court proceedings, or where Article  21 Hague applications for contact or applications for permanent removal of a child have been made. The experience gained within the scheme provides valuable insights into the place of mediation within proceedings: how it can still provide an independent, safe and private space for parents to resolve matters for the benefit of the child, and for them to achieve long-term solutions while also re-establishing and renewing communication between them. This has required a close working relationship between the High Court judiciary, specialist lawyers and Reunite – most recently reflected in the President’s Practice Guidance on Case Management and Mediation of International Child Abduction proceedings. It is interesting to contrast these experiences with, for example, the introduction of the mediation information and assessment meeting (MIAM) domestically, and the current debates about whether all courts fully understand the principles that underpin independent family mediation and the difference between the opportunity to find out about mediation offered through the MIAM and the choice of mediating where appropriate. These misunderstandings have led to some difficulties in establishing workable models for court-annexed schemes for domestic mediation. While is true that there are continuing issues about the funding of court-based or annexed schemes, there are also issues and frustrations for mediators about the ability of some local courts to understand and accept the essentially independent nature of mediation and the importance of its principles when trying to establish local and workable schemes that can operate within the required principles and the Code of Practice for family mediation. In matters of international parent child abduction, it is questionable whether legal representatives fully understand the vital part that mediation can play towards the resolution of these cases; this has resulted in some reluctance in encouraging clients to at least consider mediation by attending a first meeting with a mediator. This echoes some of the early difficulties with mediation and subsequently after the introduction of the MIAM when legal representatives, having heard their own clients’ narrative, often concluded that mediation was unsuitable. It is difficult for legal representatives, when working with a single client, to have a clear understanding of how individuals may present differently to a mediator, and how they might find the means to communicate effectively when given the opportunity to work in a structured environment that allows them to consider issues in an ordered and managed way. One interesting point of note is how often allegations made in court statements or during an initial 217

Mediation in children’s cases with a cross-border element mediation meeting dissipate once parents can communicate their fears, both separately and together. This is not to say that allegations are not to be taken very seriously; but in the heat of proceedings, when emotions are running high and parents may feel frightened and fearful, and can see only an adversarial ‘win/lose’ battle, it is perhaps understandable that they may well make such allegations, which their legal adviser must record and have regard to.

Use of new technologies Another aspect of the Reunite scheme that has required careful development over time is that for many, if not most parents caught in Hague proceedings, it may be impractical or impossible to attend mediation on a face-to-face basis. As discussed, it may be the case that neither parent is resident within the jurisdiction, even though the proceedings have been started or will continue within it. Cost, issues with visas and lack of reciprocal legal aid can also be issues. This can mean that one or both parents may be unable to formally attend mediation, but nonetheless willing to consider trying to resolve matters through mediation. Reunite pioneered the use of Skype in mediation in 2013 as a means to provide an opportunity for parents to mediate where it was impossible for them to attend in person. In order to allay any possible fears of bias, when mediators use these technologies, neither parent is present with the mediators; rather, each parent participates from home or some other suitable venue. Any interpreter required will be located with the mediators.32 Both parents sign an undertaking not to make any recordings and to be alone in the room when mediating. This is in addition to the normal agreement to mediate signed by both parents when undertaking mediation. While parents are always encouraged to meet on a face-to-face basis with the mediators, some parents will nonetheless find it difficult to attend in person. In response, mediators have needed to develop particular skills, processes and procedures in the use of telephony and video technologies such as Skype. These include accommodating essential aspects of premediation responsibilities, such as appropriate screening and assessment for suitability, capacity and safety. This is an important feature of the protocol for the child abduction scheme operating in the High Court, and screening and assessment remain critical parts of the overall Reunite scheme. Interestingly, while mediators still prefer face-to-face mediation wherever possible, feedback from parents shows that they are very satisfied with mediation using the new technologies. These experiences may also lend insight to the current debates in family mediation about the use of alternative technologies. Family mediation is not immune from the effects of the dawn of new communication and other technologies. In Reunite’s model, the mediation process is often conducted via telephone and more recently via technologies such as 218

Conclusion Skype, out of necessity. For many families caught in Hague proceedings, the use of mixed media mediation practice has offered them perhaps the only opportunity to communicate privately and directly together following an abduction, away from the full glare of proceedings. Since the inception of family mediation practice, it has been generally held that family mediation is a ‘face-to-face’ service, and many mediators are concerned that conducting any part of the mediation or pre-mediation process through technologies may have detrimental effects for both clients and mediators, and may threaten the essential principles of mediation. In September 2016 the FMC published a guidance note33 in relation to ‘online video mediation’, in response to concerns about the use of online technologies in family mediation. The guide states that: ‘Generally, family mediation is likely to be most effective when people speak face to face and in person. However, there are occasions when people cannot or decide not to come together in the same place to mediate. Using an online video connection is an option that can increase the availability of family mediation for these participants.’

Conclusion This chapter can provide only an outline of the legal framework governing child abduction and the due consideration that must be given to that framework in any mediation process aimed at assisting families that are subject to Hague proceedings. In terms of the Reunite model, the overall structure of the model and the most recent link that has been established with an effective protocol operated by the courts have further established opportunities to offer parents caught in Hague proceedings an early chance to consider mediation. More generally, advances in communication technologies and the careful attention paid to principles, learnings from and adjustments to practice over the years of operation have produced constructive results. There is insufficient space here to explore further issues which will be important for the future in mediating international child abduction matters, such as the effect (if any) of the UK leaving the EU; the overall reform of the family justice system and of the courts; the ever-increasing rise in and use of new technologies (including in legal processes and procedures); and the future training, qualification, regulation and practice of family mediators, and competencies required of mediators in international child abduction matters. Reflecting, however, on the years since the establishment of the Reunite scheme, mediation in Hague child abduction matters and in international 219

Mediation in children’s cases with a cross-border element relocation cases has provided a positive option for parents who would otherwise be reliant on the best that can be achieved through proceedings. While that would produce an outcome judgment, it would do nothing or very little to preserve (or re-establish) communications between the parents, with the attendant damage this would mean for the future parenting of, and outcomes for, their children.

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Endnotes

Endnotes 1 The court rules can be found at Family Procedure Rules Practice Direction 12, International Child Abduction and the recent President of the Family Division’s Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings, as referred to within this chapter. 2 Entered into force as a Convention on 1 December 1983. 3 The relevant Conventions, applicable instruments and regulations are: · the Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (‘the 1980 Hague Convention’); · the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (‘the 1996 Hague Convention’); · Council Regulation (EC) No 2201/2003 of 27 November 2003 on jurisdiction and recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (‘the Council Regulation’); and · the High Court’s power to make an order returning the child to another jurisdiction or to make an order for the return of the child to this jurisdiction (‘the inherent jurisdiction’). 4 Convention of 25 October 1980, Civil Aspects of International Child Abduction. 5 BL v TC and another [2017] EWHC 3363 (Fam). 6 ‘Globalisation brings with it an increasing number of bi-national and bi-cultural relationships. The couples themselves and their children often experience the resulting cosmopolitan family background as enriching. However, if the parent’s relationship falters and separation and divorce ae on the table, a trend that is increasingly evident almost worldwide, then we unfortunately see more and more cross-border and bi-national conflicts involving children. In Europe alone, over 170,000 bi-national divorces are registered each year. When one of the parents returns to their home country and takes the child or children with them without the permission of the other parent, their conflict invariably escalates.’ Paul CC and Kiesewetter S (eds) (2014) Cross-border Family Mediation: International Parental Child Abduction, Custody and Access Cases (2nd ed) MiKK eV (Frankfurt am Main: Wolfgang Metzner Verlag). 7 www.gov.uk/government/news/new-fco-figures-show-parental-child-abduction-caseson-the-rise, accessed online on 22 April 2019. 8 Council of Europe, Committee of Ministers, Recommendation No R(98) 1 1998. 9 Freeman M  (1998) ‘The Effects and Consequences of International Child Abduction’, Family Law Quarterly Vol 32, No 3 (Fall 1998) pp603–21; Chiancone J (2000) ‘Parental Abduction: A review of the Literature, Office of Juvenile Justice; accessed online at www. ncjrs.gov/pdffiles1/ojjdp/190074.pdf on 22 April 2019; Freeman M (2006) International Child Abduction: The Effects (Leicester: Reunite/DCA); Buck, T (2012) An Evaluation of the Long-term Effectiveness of Mediation in Cases of International Parental Child Abduction (Leicester: Reunite); Freeman M (2014) Parental Child Abduction: The Long-Term Effects (Watford: Int Centre for Family Law, Policy and Practice); Beaumont P, Walker L and Hollliday J (2016) ‘Parental Responsibility and International Child Abduction in the proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings’, Int Journal of Fam Law, Nov pp307–18, Sussex Research Online. 10 Parliamentary Working Party on Child Abduction (PWPCA) ‘Home and Away: Child Abduction in the Nineties’, 1993. 11 Ibid 12 https://childfindofamerica.org/, accessed online on 22 April 2019. 13 Section 1.1 (Welfare of the Child) of the Children Act 1989 provides that: ‘When a court determines any question with respect to (a) the upbringing of a child or (b) the administration of a child’s property or the application of any income arising from it, the child’s welfare shall be the court’s paramount consideration.’ Any decisions reached by the courts in the England and Wales jurisdiction hold this principle as primary to any decisions made about, for or on behalf of any child or young person. 14 Freeman M  (1998) ‘The Effects and Consequences of International Child Abduction’, Family Law Quarterly Vol 32, No 3 (Fall 1998) pp603–21; Chiancone J (2000) ‘Parental Abduction: A review of the Literature Office of Juvenile Justice’, accessed online at www. ncjrs.gov/pdffiles1/ojjdp/190074.pdf on 22 April 2019.

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Mediation in children’s cases with a cross-border element 15 Mnookin R and Kornhauser L (1979) ‘Bargaining in the Shadow of the Law: The Case of Divorce’, accessed online at https://digitalcommons.law.yale.edu/ylj/vol88/iss5/4 on 22 April 2019. 16 Reunite drew heavily on the Bromley Model, which itself was based on the Coogler Model of Structured Mediation (OJ Coogler, North American lawyer and psychotherapist) This model was first introduced in the UK by Fred Gibbons, who established the South East London Mediation Bureau in Bromley. The model provides a firm structure in which participants feel protected, individually able to state their own case and able to negotiate with one another. See also Coogler OJ, Weber Ruth E and McKenny Patrick C  (1979) ‘Divorce Mediation: A  means of Facilitating Divorce and Adjustment’, The Family Co-ordinator Vol 28, No 2 pp255–59; and Roberts M (2015) ‘Hearing both Sides’, Family Law, June 2015, Vol 45, pp718 – 26). 17 ‘Mediation In International Parental Child Abduction – The Reunite Mediation Pilot Scheme’, accessed online at www.reunite.org/edit/files/Library%20-%20reunite%20 Publications/Mediation%20Report.pdf on 22 April 2019. 18 Ibid p1; ‘An Evaluation of the Long-Term Effectiveness of Mediation in Cases of International Parental Child Abduction’. 19 FMC Manual of Professional Standards and Self-Regulatory Framework, accessed online at www.familymediationcouncil.org.uk/wp-content/uploads/2015/01/fmc_standards_ framework_manual.pdf on 9 July 2019. 20 International Social Services International Family Mediation, accessed online at www. iss-ssi.org/index.php/en/what-we-do-en/mediation-en on 22  April 2019; International Mediation Centre for Family Conflict and Child Abduction (MiKK), accessed online at www.mikk-ev.de/en/ on 22 April 2019. 21 Ibid p1. Presidents Practice Guidance case management of mediation of international child abduction proceedings, 18 January 2018, accessed online at www.judiciary.uk/wpcontent/uploads/2018/03/presidents-practice-guidance-case-management-mediation-ofinternational-child-abduction-proceedings-20180227.pdf on 22 April 2019. 22 In many of these cases, various forms of alleged domestic abuse by both parties is a feature; and just as in domestic mediation practice, the mediators also take particular care to explore whether there is, might be or has been any domestic abuse, including controlling and coercive behaviour between parents. If there are or have been any allegations in relation to domestic abuse, this does not rule out mediation, provided that there has been a careful exploration with each parent as to the nature of any allegation (or incidents), and that both parents wish to mediate and agree to appropriate safeguards being in place. All allegations must be considered with great care and sensitivity. A refusal to mediate on the grounds of alleged domestic abuse may have a perverse penalising effect for an abducting parent who has alleged abuse as a reason for fleeing the jurisdiction. In the likely circumstances where the children will be ordered to return to the original jurisdiction, the abductor may face a very difficult or unsafe situation and lengthy, stressful and expensive disputes; so where both parties are willing to mediate, it is felt that this is the best opportunity to ensure the well-being of the family. However, while it is important that parents have the opportunity to mediate where it is safe to do so, mediators must remain alert to all effects of an abusive relationship on the individual’s capacity to speak and negotiate without fear of consequences, whether the physical safety of an individual can be assured and so on. As in domestic mediation, the mediators are not making a judgement or diagnosis of the situation as between the parents in respect of any abuse, but must make a careful and considered decision on the suitability and appropriateness of mediation in all the known circumstances. Shuttle mediation is always offered. However, if allegations are made regarding abuse of any kind, or where either parent raises a safeguarding concern in respect of the children, the mediator will check whether these allegations are known to the court and/or what actions have been taken. Where these are fresh allegations, both parents are immediately informed that mediation will not take place (or continue), and that the concerns raised will be referred to an appropriate authority. 23 Convention of 25 October 1980, Civil Aspects of International Child Abduction; ibid. 24 Practice Direction 12F, International Child Abduction 2.14, accessed online at www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12f on 9  July 2019; ibid.

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Endnotes 25 As soon as an inquiry is made regarding mediation, all relevant forms are sent to each parent. In order to provide information to each parent and ascertain the suitability and appropriateness of mediation, a confidential MIAM is held separately with each parent, by indirect means. First contact is handled in this manner as it is often the case that one parent may not be available within the jurisdiction; conducting both meetings indirectly and remotely is thus the most appropriate way to ensure even-handedness from the outset. Mediators will also consider whether an interpreter is required and will ensure that an interpreter is available where needed. It is also explained to each parent that the MIAM is offered on a confidential basis, subject to the exceptions that apply generally to mediation; and that what is discussed will not be shared with a third party, except where an exception to confidentiality applies. The mediation process is also explained, including the principle of voluntariness, the confidential nature of mediation (and the exceptions thereto), the importance of and availability of legal advice, and the non-binding nature of the MoU until converted into a consent order. 26 The parents must understand and agree that any report or information provided following a discussion with the child or children reflects the child’s independent thoughts and wishes; but that it is for them as responsible parents, or for a judge if the parents cannot agree, to make the decisions regarding the child’s future. Although the child has a voice and can contribute, the final decisions will thus be made by the parents or the court. 27 President’s Practice Guidance, Case Management and Mediation of International Child Abduction proceedings; 3. Case Management – Related Matters, 3(b) Participation of the Child. 28 At the start of the first mediation session, the aim of mediation, the applicable principles, the status of discussions and of any outcome agreement from the mediation process, and the potential for any outcome to be converted to a consent order are reiterated. Parents are reminded that independent legal advice is always encouraged, to help ensure that they can reach informed decisions; that they can seek legal advice at any time; and that if the mediators believe it would be helpful for them to do so, they will suggest it. Reminders are given on the conduct and timings of the mediation and ground rules are agreed. After the opening joint meeting, both mediators then see each parent separately. The mediators will generally ask each parent to reflect on what he or she considers the best outcome and what might be unacceptable, and to outline what his or her plans are or might be regarding the arrangements for the children to spend time with the other parent should an agreement be reached in the mediation or should the court make an order in his or her favour. From these discussions, the mediators will draw up a note of the issues that each parent wishes to discuss and whether there are areas of mutuality or agreement. Having seen each parent separately, the mediators reconvene the joint meeting and reflect to the parents what they have understood from the separate discussions, asking the parents to confirm the accuracy of their reflections. At this stage, the mediators and parents can often identify areas of mutuality or agreement, which helps to narrow the issues to be discussed and can reduce the conflict between the parents. The mediators then help the parents to discuss the issues and explore what options might be available, acceptable and manageable for their family. The mediators will take responsibility for ensuring that the parents are reminded what additional information they might need to subsequently test emerging options, especially where the parents may need to consider housing, income, financial support and benefits, for example, and how any arrangements for contact with the child are best arranged and afforded. 29 Townsley B (ed) Understanding Justice: An enquiry into interpreting in civil justice and mediation (Exeter: Short Run Press), accessed online at www.understandingjusticeproject.com/assets/uj_report.pdf on 9 July 2019. 30 The remainder of the session is spent jointly revisiting discussions and reality testing, in detail, a possible agreement which would take account of the jurisdictional aspects, residence for the child, arrangements for time spent with each parent (contact) and relevant financial aspects. 31 The MoU is then typed up in its final form and is voluntarily signed by both parents and the mediators. It is emphasised once again that the MoU is not legally binding, and that

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Mediation in children’s cases with a cross-border element the parents should seek individual legal advice before the court is asked to consider and make a consent order. The parents are also reminded that any arrangements in the order may be varied in the future as the child grows or circumstances change by written agreement between the parents, by returning to mediation or by returning to court in the relevant jurisdiction. The MoU is then emailed to each respective solicitor for further advice and action with the respective client. In circumstances where the parents inform the mediators that they do not intend to register an agreement in court, they are advised and encouraged to seek legal advice regarding any future consequences of not doing so. 32 The Townley research also observes that the provision of interpreter services via online video conferencing has also been developing within the criminal justice system and in other jurisdictions. 33 www.familymediationcouncil.org.uk/wp-content/uploads/2016/09/FMC-Guidance-forOnline-Video-Mediation-September-2016.pdf, accessed online on 27 April 2019.

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References

References Beaumont P, Walker L  and Holliday J  (2016) ‘Parental Responsibility and International Child Abduction in the proposed recast of Brussels IIa Regulation and the effect of Brexit on future child abduction proceedings’, International Journal of Family Law, November 307–318/ Sussex Research Online. Buck T (2012) ‘An Evaluation of the Long-Term Effectiveness of Mediation in cases of International Child Abduction’ (Leicester: Reunite International Child Abduction Centre). Chiancone J  (2000) ‘Parental Abduction: A  review of the Literature Office of Juvenile Justice’, accessed online at www.ncjrs.gov/pdffiles1/ ojjdp/190074.pdf on 22 April 2019. Coogler OJ, Weber, RE and McKenny, PC  (1979) ‘Divorce Mediation: A means of Facilitating Divorce and Adjustment’, The Family Co-ordinator Vol 28 Issue 2 255–59. Family Mediation Council (2016) FMC Manual of Professional Standards and Self-Regulatory Framework. Family Mediation Council (2018) Code of Practice and (2016) Guidance for Online Video Mediation. Freeman M (1998) ‘The Effects and Consequences of International Child Abduction’, Family Law Quarterly Vol 32 Issue 3 603–21. Freeman M  (2006) International Child Abduction: The Effects (Reunite International Child Abduction Centre/Dept for Constitutional Affairs). Mnookin R  and Kornhauser L  (1979) ‘Bargaining in the Shadow of the Law: The Case of Divorce’, accessed online at https://digitalcommons. law.yale.edu/ylj/vol88/iss5/4 on 22 April 2019. Paul CC and Kiesewetter S (eds) (2014) Cross-border Family Mediation: International Parental Child Abduction, Custody and Access Cases (2nd ed) MiKK eV (Frankfurt am Main: Wolfgang Metzner Verlag). Parliamentary Working Party on Child Abduction (PWPCA) (1993) Home and Away: Child Abduction in the Nineties. Reunite International Child Abduction Centre (2006) Mediation In International Parental Child Abduction – The Reunite Mediation Pilot Scheme, accessed online at www.reunite.org/edit/files/ Library%20-%20reunite%20Publications/Mediation%20Report.pdf on 22 April 2019.

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Mediation in children’s cases with a cross-border element Roberts M (2015) ‘Hearing both sides: structural safeguards for protecting fairness in family mediation’, Family Law, Vol 45 718–26. Townsley B  (ed) Understanding Justice: An enquiry into interpreting in civil justice and mediation (Exeter: Short Run Press), accessed online at www.understandingjusticeproject.com/assets/uj_report.pdf on 9 July 2019.

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Chapter 12

We have the method but still there is so much to do: mediation for gender and sexually diverse relationships Maria Federica Moscati1

‘You three are my favourite couple’ (Maupin 1984: 41)

Introduction A friendly, trustworthy environment is essential for the resolution of family disputes. Mediation, as the chapters in this book articulate, represents a suitable method for the resolution of a variety of family disputes, whatever legal and practical issues might arise. My contribution concerns the exploration of some practical implications of mediation where it has been adopted to resolve disputes within complex family structures based on gender and sexually diverse relationships. This diversity involves families formed of relationships in which one or more of the partners self-identify as lesbian, gay, bisexual, trans,2 queer or non-binary (LGBTQ+). There might be multiple parents and partners in these relationships, and the law may not recognise and protect their family ties. Because of the number of parties involved, the nature of kinship, the influence of sexual orientation and gender identity, and the impact of structural factors, disputes within such families are likely to be complex (Argentino and Fiore 2019; Hertz 2008). In this chapter I question whether the practices of family mediation which have evolved over the past few years in England and Wales are sufficiently equipped and suitable for the variety of family structures which challenge the dominant model of nuclear families based on heterosexual differentsex relationships. I argue that family mediation practices in England and Wales have proved themselves to be insufficient (or inadequate) to meet the needs of gender and sexually diverse families. It seems to me that the reasons lie predominantly in the inherently heteronormative genesis of current practices.3 Therefore, greater understanding of the diversity of family structures and the impact of sexual orientation and gender identity in mediation training and practice is needed. 227

Mediation for gender and sexually diverse relationships Over the last six years, my research has explored the needs of, and available provision for, sexually and gender diverse families – including same-sex couples and trans parents – when seeking to resolve disputes. I collected data from semi-structured interviews with mediators, lawyers and samesex couples, reviewed codes of practice of family mediation providers, analysed websites of family mediation practices and prepared informative material for children on family mediation. My findings highlight a number of shortcomings that need to be addressed in order to develop supportive mediation services for sexually and gender diverse families. These families are frequently absent from mediation practice, government policy and even guidelines for mediators. Consequently, mediators do not receive adequate training to meet the needs of these families. Furthermore, the debate about whether and how to involve children in family mediation has failed to take sufficiently into account the diversity of the family structures and dynamics in which they find themselves. These failings have implications for mediation practice, as the models used to involve children have largely been developed on the assumption that they have two different-sex, heterosexual parents, whereas in many family groups there are multiple parents with various rights and responsibilities.4 In this chapter I will argue that these shortcomings develop out of what is becoming a highly formalised and institutionalised approach to family mediation in England and Wales. Same-sex partners within the LGBTQ+ community (many with children) have resorted to mediation for a long time (Hanson 2004; Moscati 2014). While acknowledging the value of mediation, research has demonstrated the need for mediators to offer an unbiased environment to these partners. Mediators should understand the effects of societal homophobia on the context of the dispute and should be sensitive to the differences that exist between gay partners and lesbian partners. In short, mediators should demonstrate that they understand what it means to be queer in this society (Astor 1996; Bryant 1992; Gunning 1994; Campbell 1992; Hertz 2008). Research focusing on the role of the mediator and issues which might arise during mediation sessions in the context of diverse families – although mainly considering legal systems other than that of England and Wales – emphasises the importance of taking a range of factors into account. These include the influence of social inequalities (Moscati 2020; Hertz and Geldenhuys 2015); the changing social and legal environment in which same-sex unions operate (Hertz 2008; Hertz at al 2009); and the broader discourse on diversity and intersectionality during mediation (Hoffman and Triantafillou 2013; Barsky 2004). Hertz and Geldenhuys, in particular, suggest that: ‘the work requires a sensitivity to gender and culture in ways that may be disturbing for some conventional mediators, and it forces the mediator to be aware of his or her assumptions about how romantic – and legal – relationships work. It also imposes a burden of education about how the political and legal evolution 228

Sexual orientation, gender identity and mediation of same-sex marriage has unfolded, and a sophistication as to how those legal changes impact the couple in conflict’ (Hertz and Geldenhuys 2015:145). Psychological research also offers a rich tapestry of information useful to us when considering mediation in diverse family forms. In particular, research on the nature and characteristics of relationship instability (Khaddouma and Norona 2015), on dissolution (Kurdek 1991 and 1997), on the differences that exist between gay partners and parents and lesbian partners and parents (van Eeden Moorefield et al 2011), on the different factors and variables determining relationship dissolution in same-sex and different-sex adoptive parents (Goldberg and Garcia 2015; Goldberg at al 2014), and on the impact that dissolution has on the children of lesbian mothers (Farr 2017; Gartrell et al 2011) has unveiled the particularities that such families present. Finally, recent analyses have brought together legal and psychological perspectives and moved beyond the focus on same-sex couples, examining the characteristics of LGBTQ+ divorce and relationship dissolution in the USA (Goldberg and Romero 2019). Despite this wide-ranging scholarship, there is a dearth of reflections on the practical implications for mediation practices in England and Wales when gender identity and sexual orientation diversity in family relationships are in issue. There is also limited knowledge on the involvement during mediation of children raised in sexually and gender diverse families. This chapter represents, therefore, a first attempt to reassess current practical approaches to family mediation when these families are involved. In undertaking this task, I will take account of the issues that mediators themselves have identified and the questions they have asked me during the years of my fieldwork. In what follows, I will start by looking at the way in which sexual orientation and gender identity influence disputes and family mediation. I  will then proceed to analyse some practical implications for mediation practice and finally move on to discuss the involvement of children in family mediation.

Sexual orientation, gender identity and mediation A question that mediators have frequently asked me is: ‘What impact does the breakdown of relationships with LGBTQ+ partners have on the family?’ This question provides the opportunity to clarify the terms of the present analysis and some important characteristics of the disputes considered here. In particular, some reflections are needed on the impact that sexual orientation and gender identity have on the types of relationship and families that LGBTQ+ persons create, the sources of dispute and dispute resolution. With regard to sexual orientation and gender identity, it is important at the outset to clarify that sexual orientation and gender identity are different; that they raise different issues for the parties in mediation and for the 229

Mediation for gender and sexually diverse relationships mediator; and that they must be understood within their cultural and historical context. It would be a mistake for the mediator to overlook such differences and the social and cultural dimensions of sexual orientation and gender identity during mediation. Both sexual orientation and gender identity might represent sources of dispute between the partners, and between the children and their parents.5 Examples from my data include cis-gender6 heterosexual couples in which one partner comes out as gay, lesbian, bisexual or trans; cis-gender samesex couples in which one of the partners comes out as bisexual or trans; and children who come out as gay, lesbian, bisexual or trans. The decision as to whether to come out with one’s own extended family or at work can also represent a source of dispute (Moscati 2015a). More specifically for trans partners, gender transition has relational dimensions, which can have an impact on the whole family. It might represent a turning point for the relationship with the other partner and – combined with other factors such as age and family support – might trigger disputes. But at the same time, transition might be used as an excuse to cover deeper causes of dispute (Meier et al 2013). Sexual orientation and gender identity might also represent factors which exacerbate an existing dispute. My research found that bisexuality often has this effect. Many people have long regarded bisexuality as a phase towards homosexuality or heterosexuality. This attitude is often invisible to researchers and to activists (Prior 2018), although research has confirmed that bisexuality is a separate sexual orientation (Diamond 2009). However, the popular misconception of bisexuality as a phase has a stigma-creating effect even within the LGBTQ+ community; bisexual individuals feel an additional sting of discrimination. I will illustrate what I mean by using an example from my research: Sabrina and Mary were in a long-term relationship when they decided to have a child and to conceive the child with the help of a male friend. After Sabrina gave birth, she declared to Mary that she was actually bisexual and would like to engage in a relationship with the biological father of their child while maintaining her relationship with Mary. They attempted mediation to deal with their problem. According to their mediator, bisexuality was the most significant issue for discussion, dwarfing the significance of the proposal to have a relationship involving a third partner. The way in which sexual orientation and gender identity are performed (Butler 1988) can also be a cause of dispute. Again, an example from my research is illustrative: during an interview with a same-sex couple, the claim was made that their relationship broke down because one of the partners ‘was too gay’. It seems that disputes are often triggered or exacerbated by disagreements on whether to conform to mainstream gay and lesbian stereotypes or attempt to defy them. 230

Sexual orientation, gender identity and mediation Bronfenbrenner, in his ecological systems theory, has pointed out the importance of considering the impact that social and cultural variables have on relationships (1979). Looking at the emergence of a dispute, Felstiner, Abel and Sarat have similarly emphasised how disputes are essentially social constructs (1980–81). This is also true for disputes and family mediation involving sexual orientation and gender identity. In particular, research has shown that negative stigma in the context of sexual orientation and gender identity, lack of social support and limited legal protection for sexual minorities create stresses which might become causes of personal conflict, intra-family dispute and ultimately relationship dissolution (LeBlanc and Frost 2019; Rostosky and Riggle 2017; Khaddouma, Norona and Whitton 2015). A  further contextual source of dispute derives from the pressure created by bias concerning ‘compulsory heterosexuality’ (Rich 1989: 631), and ‘compulsory coupledom’ (Wilkinson 2012: 130). ‘Compulsory heterosexuality’ is the pressure felt by sexually and gender diverse partners to conform to heteronormative models of partner and parental behaviour. This happens even in a legal system such as England and Wales, which has a coherent framework protecting LGBTQ+ people and their relationships. For instance, my data shows that – particularly between lesbian mothers – parenting disputes could be framed by antagonism about who the better mother is, where ‘better mother’ refers to the parent who has the more obvious direct caring relationship with the child. Research on the nature of the relationships of LBGTQ+ partners has also encountered and analysed several issues (Patterson 2013) that make mediation complex and better mediation training essential. Here the concern is first to clarify the nature of these relationships (as introductory to the following section on the role of the mediator). It has been well established that LGBTQ+ families are diverse (Biblarz and Stacey 2010). Like much other research, my fieldwork revealed an array of family groups in which kinship was established on the basis of an intersection of genetics and choice (Weston 1991). Families I  have studied include those based on the intimate relationship of two partners (ranging from same-sex, through one trans and the other of the same sex, to both trans) or three partners (again, across the full range of sex, sexual orientation and gender identity combinations), or two couples (usually two same-sex couples having a child or children together). As is readily apparent, the variety of adult family structures also suggests a variety of circumstances in which children are being conceived and raised. In short, then, in the absence of a legal framework that can deal with the great variety of family relationships, and often framed within feminist and queer theories,7 sexually and gender diverse partners have created their own family systems. The consequence of this variety is that new sources of dispute are generated. These new sources of dispute represent challenges to the patriarchal model of the family. In particular, there may be a difference between what is perceived as family by the parties 231

Mediation for gender and sexually diverse relationships in dispute and what the law recognises as family. In this chapter I argue that family disputes must be understood in broader terms to encompass all these family types. In dealing with intra-family disputes, it is important that mediators do not assume that family structures and family roles are based on a heterosexual paradigm (Hertz and Geldenhuys 2015). Distinctions between the way in which these relationships actually exist and how they are portrayed in law and in society range across the number of partners in the relationship, the nature and contours of the relationship (eg, living and financial arrangements), and the types of disputes that are expected to arise. Presumptions that the law has finally provided protection for the ‘true diversity of same-sex couples’ (Rostosky and Riggle 2019: 51) and that all relationships involving sexually and gender diverse partners fall into the different-sex heterosexual model raise real issues for the mediation process. According to my empirical data, relationships might include two, three, four and maybe even more partners. The partners may share an intimate relationship that may not have a sexual component (while still defining themselves as partners). Sometimes, a de facto same-sex relationship is accompanied by a different-sex relationship where one or both partners define themselves as bisexual. The relationships involving two partners include legalised civil partnerships, marriage and informal cohabitation. It is also possible that not all partners share the same home (in my research one three-partner relationship included two who lived together and one – with whom there was shared intimacy – who did not). The variety of relationships leads to a wider array of disputes than the heteronormative model encourages us to contemplate. And the disputes do not always hinge on an ending of the relationship (see Sims in this collection). Disputes might, for instance, concern the way in which such relationships are managed daily. They may revolve around the boundaries that the partners have to respect. Or they may be about adjusting expectations or resolving misunderstandings (eg, when an informal cohabitation relationship co-exists with a marriage or civil partnership). I will illustrate some of the potential difficulties of context in the following case study: Andrew and John have been together for more than 15 years. There is a significant age difference between the two and they live in two different countries: Andrew lives in Paris and John lives in London. But their relationship is very strong. Considering the age difference, Andrew has told John that he is free to have other sexual encounters, but should avoid establishing any new relationship. For 14 years John did not meet anyone else. But last year he met Robert, who also lives in London. They fell in love and Robert moved in to John’s house. John introduced Andrew to Robert. Although Andrew has always professed his indifference to John having other sexual partners, and although Robert has 232

Sexual orientation, gender identity and mediation told John that he does not care about his long-term relationship with Andrew, problems arise concerning the ‘respect for each relationship’s space’. The dispute is not about the co-existence of the two relationships, but rather how to organise them in a way that allows time and space for all the parties involved. However, there is a tendency to think – as evidenced in both the SameSex Marriage Act 2013 and the Civil Partnerships Act 2004 – that samesex relationships are self-evidently heteronormative, despite the fact that research has demonstrated a much greater variety in the relationships that LGBTQ+ people create. Current approaches to family mediation8 seem to draw heavily upon the model of relationships and families described/ protected by the law, and therefore the styles and models of mediation are only superficially sensitive to the issues presented in intra-family disputes in the relationships considered here. But even where openness to different relationships exists, there is an often reductive tendency to treat, for example, same-sex relationships in the same way as relationships involving at least one trans individual. Although still limited, current research on these relationships shows that the emotional, social and legal challenges that trans individuals and their partners have to navigate are significantly different from those that same-sex couples encounter (Hines 2006; Pfeffer and Castaneda 2019). A related question often posed by mediators is: what issues do same-sex and transgender parents face on separation? LGBTQ+ people can become parents through a range of routes (Goldberg 2009; Patterson and Riskind 2010), ranging from previous different-sex relationships through adoption and planned co-parenting (Bremner 2017) to assisted reproductive techniques. According to my empirical data, parental disputes likewise occur in a wide variety of circumstances. Parents might include a lesbian mother and gay father who are not partners, but have had a child together; two biological parents and their current or former partners; the biological parent and his or her same-sex partner (including the two gay parents who have mixed their semen for the insemination); an egg donor, a sperm donor and the gestating parent; a gay couple and the woman who gives birth to their child; a trans man who gives birth to a child and the other parent; a trans woman and her partner (Moscati 2015a). This diversity and the gap between legal norms and lived realities have particular significance for the mediation process. The potential number of parents – those perceived as parents and playing a parenting role – in dispute might be greater than a heteronormative assumption would admit. Because of the informal status of some of those parents, significant power imbalances are likely to arise in a way that does not occur in mediation involving heteronormative relationships. The mediator must be equipped to deal with these.9 Causes of disputes over children are normally manifold. In the context of sexually and gender diverse relationships, those causes can increase 233

Mediation for gender and sexually diverse relationships significantly. Disputes revolve around issues such as deciding whether to have a child; which party in a male couple will donate the sperm; which party in a female couple will be the egg donor and which the gestational parent; and how and with whom conception should be achieved. Frustration at the difficulties involved in accessing reproductive technologies might itself be a stress factor that induces dispute – about the adult relationship or about other children that are already being raised by parents. Disputes also arise regarding the role played by non-biological parents: about contact, residence and other decisions made in raising a child; and about child support (Moscati 2015b). For trans persons, research has suggested that ‘if a trans person and their partner share the same reproductive organs (e.g. ovaries, fallopian tubes, and a uterus) while occupying different gender identities (e.g. man and woman) they may feel frustrated that they are unable to reproduce’ (Pfeffer and Castaneda 2019: 299), and that may cause dispute about any number of family issues. The variety of ways available to conceive children and the variety of parenting arrangements make parenting disputes diverse and distinctive. Because of the complex social relationships between legal parenthood, (legal) parental responsibility and more remote social parenthood, serious power imbalances often arise in the context of parental disputes where sexually and gender diverse adults have children. To make matters even more difficult, parental gender roles are likely to fall outside the typical heteronormative mother/father dichotomy. As a result, parenting is more likely to be stigmatised and subjected to systemic inequalities and gender norms that privilege the position of biological mothers (Herbrand 2018). Enquiries into the deeper recesses of sexually and gender diverse relationships and parenting reveal that there are differences between trans parenting and same-sex parenting that a mediator should take into consideration. In both instances, parents will go through changes which will need to be explained to their children. However, the types of changes in each will be different. For trans parents, the changes might involve the relationship with the other parent as well as the fact that transitioning will change physical characteristics. These changes will be more difficult to communicate to children than most changes that other parents – including same-sex parents – ever have to confront with their children. Research has shown that some trans parents decide to delay their transition in order to protect their children (Hines 2006). There is also often a profound fear of rejection by children (which may or may not be linked to the transition per se, but may arise because of the consequences of a variety of fears – including a fear of separation) (Samons 2009). At the same time, children of trans parents are also likely to experience discrimination and stigmatisation linked to the transitioning of their parent(s) (Dierckx and Platero 2017). One of the advantages that mediation holds out for this great variety of families is that, even if the law does not recognise all parenting structures that sexually and gender diverse partners create, mediation should offer 234

Reshaping family mediation practices all parties involved a processual forum within which to express their voices. The next section explains how this is possible, and how it should be made more effective and accessible to these families.

Reshaping family mediation practices Mediation offers the parties involved more opportunity to achieve an appropriate outcome to their dispute. But at the moment, this space exists within a normative framework and with a mediator who, by his or her very presence, transforms the dispute in various ways. An important initial enquiry requires consideration of the extent to which and the ways in which such transformations occur. We must reflect upon the greater diversity of non-heteronormative families without running the risk of forcing these families into a heteronormative model.10 My concern here is that the processes of formalisation (Palmer 2014), institutionalisation and normativisation that take place as mediation becomes more widely used and professionalised may well bring disadvantages that impinge on mediatory intervention in disputes between parties in non-heteronormative family contexts. For me, then, questions arise about the manner in which mediation services could be improved so that they can better meet the needs of sexually and gender diverse relationships. As Roberts has described, the developments of family mediation in the United Kingdom can be divided into four phases characterised by interdisciplinary influences (2016). Family mediation is of interest to social workers, family therapists, lawyers and professional mediators in more general practice. Yet considerations regarding sexual orientation and gender identity have been largely absent from the theory and practice of those four disciplines. Further, as Barlow and Hunter point out in this volume, the move from the liberal to the neoliberal approach to policy in England and Wales has influenced family mediation. Principles such as access to justice, fairness and party autonomy in family disputes have changed. Questions therefore arise as to whether and how those changes impact on family disputes where the families in dispute defy heteronormative norms (and are already structurally disadvantaged). It is no surprise, therefore, that mediators have often asked me what they should do to meet the needs of these families. My view is that the role of the mediator should adapt to the types of disputes analysed here, and that this requires mediators to take personal and professional steps to acquaint themselves with the kinds of problems raised in this chapter (Hertz and Geldenhuys 2015). As suggested by Hertz, mediators need to examine their own assumptions and biases regarding sexual orientation and gender identity and, in consequence, to avoid making assumptions about family and gender roles within these families (Hertz 2008). They must be aware of legal changes concerning sexual orientation and gender identity, and the impact of stigma and social inequalities on the source of dispute and on the way in which parties might perform during mediation (Hertz 235

Mediation for gender and sexually diverse relationships 2008; Hertz et al 2009; Moscati 2014b). Avoiding assumptions extends to the domestic abuse screening covered by mediators during the mediation information and assessment meeting. Domestic abuse between LGBTQ+ partners is often perpetrated by means different from those used between monogamous different-sex couples (eg, using the threat of exposure in relation to the partner who has not ‘come out’) (Donovan and Barnes 2017). In seeking to understand these families better, mediators can contribute to making them visible and to normalising the idea of family diversity that is evidenced by these relationships. This means that mediators should resist pejorative and prejudiced language, and should adopt genderneutral terminology on websites, during mediation and in their referral forms. They should provide gender-neutral restrooms. Their publicity should demonstrate that they have a keen grasp of sexually and gender diverse families. It should visibly acknowledge diversity in family norms. The explanatory and informative material that they use should be childfriendly and overtly take account of sexual orientation and gender identity. During mediation sessions, practice sensitive to the needs of sexually and gender diverse families will avoid gender-based assumptions – for example, on appearance. It should also be culturally sensitive, taking into account the variety of words used to characterise the ways in which sexual orientation and gender identity are acknowledged in different cultures (ie, words such as ‘gay’, ‘lesbian’ and ‘transgender’ do not offer a comprehensive overview of all the nuanced forms in which sexual orientation and gender identity are expressed) (Hertz and Geldenhuys 2015). The mediator should be sensitive to whether the disputants are ‘out’ and to the effect that their status in this regard might have on the mediation (and, in particular, the balance of power between the parties). In addition, in facilitating the exchange of information and learning between the parties, an important task of the mediator will be to help disputants become aware of, clarify and understand the contradictions between the law and their experience (Hertz 2008). Thus, good practice would be to ask the parties to describe how they conceptualise their relationship and how they understand family and parenting practices. Attentive mediators should also explore the parties’ knowledge and understanding of the legal status (or lack of status) of members of their ‘family’ (Hertz 2008). As I have already suggested, mediation practice with sexually and gender diverse families must take account of differences that exist between samesex relationships and relationships in which one or more partners selfidentify as trans. Transition is a process which brings changes and has a strong subjective dimension; it is not perceived as the same by every trans persons and every family in which someone is transitioning. It is important for the mediator to be aware that transition can be perceived as an egoistic act triggering conflict. Mediators must also be aware that trans parents experience stigma and discrimination (Pyne et al 2015), which in turn influences the way in which they perform during mediation. Hormone 236

Reshaping family mediation practices therapies may also bring about changes in emotions which might manifest in mediation. As transition is a process, several issues might arise during the phases of mediation which will require the mediator to understand at what stage in the transition the dispute occurs. Before concluding this section, I wish to make a few observations about systemic and structural problems that might undermine the effectiveness of mediation in disputes involving sexually and gender diverse families. While these are not absent from heteronormative mediation, they are particularly pronounced in the context of the relationships under consideration in this chapter and, I submit, deserve special attention here. The first issue that I  wish to address concerns power imbalance. In common with every other relationship, sexually and gender diverse relationships reveal power imbalances along fault lines that include age, financial situation, educational background and an innate ability to function during mediation (Roberts in this volume). Unsurprisingly, my fieldwork data shows, however, that there are additional sources of power imbalances rooted in discrimination and stereotypes concerning sexual orientation and gender identity. These include the perception of the self that disputants have about their sexual orientation, the personal history of social oppression that the disputants have faced and the limited legal recognition of non-biological parents. Discrimination and oppression experienced by the parties may reduce the positive effects that mediation can have on the disputants, thereby raising a substantial concern about the way in which disputants perform during mediation. Even in the absence of a power dimension, discrimination and stereotyping in the context of sexual orientation and gender identity represent negative variables that might arise or influence mediation. LGBTQ+ disputants who feel strongly the influence of external discrimination may reduce their expectations and requests during mediation or may become more aggressive. Therefore, it will be the task of the mediator to facilitate the recognition of such barriers, and to unveil sources of discrimination between the parties based on real or perceived characteristics of each other’s sexual orientation and gender identity. Perhaps a more obscure factor that I  wish to raise is the invisibility of sexually and gender diverse families in mediation. Empirical data collected through my analysis of websites advertising family mediation, informative material for children and foundation training programmes and family mediation training programmes reveals that these families and their children are unrepresented and therefore invisible. Family mediation practices draw heavily upon the legal definition of (heteronormative) adult relationships and heteronormative parenting practices. Mediators are trained, essentially, to deal with disputes involving these types of families. A (hetero)normative idea of family is at the core of mediators’ preparation. To adapt the warning of Comaroff and Roberts (1981), normative expectations represent the means by which interactional processes are 237

Mediation for gender and sexually diverse relationships given meaning as they unfold. The relationship between the expectation of a relationship norm and the substance of an actual relationship is dialectical and not motivational. How we see and read a relationship is influenced by our expectations of it (Comaroff and Roberts 1981). As I see it, the norms driving family mediation in England and Wales do not seem to mirror the substance of many families. Foundation training should, I  submit, broaden its focus and include specific preparation for mediators concerning sexually and gender diverse families. Part of the training should be devoted to equip mediators with terminology used within LGBTQ+ communities (including queer and nonbinary). Codes of practice, policy papers concerning domestic abuse and guidelines on how to involve children in family mediation should address the particularities that sexually and gender diverse families present. This should be done first by avoiding the assimilation of differentsex, heterosexual, monogamous relationships on the one hand, with stereotypical assumptions concerning LGBTQ+ people; and second, by taking into consideration the intersectionality between sexual orientation, gender identity and age, ethnicity and religion (Crenshaw 2017). Building upon interdisciplinary sources, codes of practice and training should be redesigned to take into account the specific characteristics that such families present, and the impact that social structures and heteronormative ideology can have on disputes in those families and on their mediated resolution. The normative influence of heteronormativity, which does not mirror the substantive reality of sexually and gender diverse families, is especially evident in parenthood, where the law allows a child to have two legal parents. This seems to be mirrored in mediation practices concerning the involvement of the child in family mediation. It is therefore to that subject that I now turn.

Children in mediation Allport (in this volume) provides a detailed analysis of the theory and practice concerning the involvement of children in family mediation. My aim here is therefore to share some initial reflections in order to add an extra layer of insight on this subject, and to propose a much more engaged role for  the child in mediation beyond that of consultation, as presently envisaged. For reasons of space, I do so by focusing my analysis on the involvement of children experiencing family disputes in gender and sexually diverse families. These children have been neglected in current debates on the child’s involvement in mediation. The noteworthy debate about whether and how to involve a child in family mediation has proceeded on the basis of a decontextualised approach. By this I mean that scholars, practitioners and policy makers have largely focused on how to involve children during mediation, without paying sufficient attention to 238

Children in mediation the contexts in which the children of sexually and gender diverse parents find themselves. Such approach has, in my view, been mirrored in the practice, which has mainly focused on the dichotomy of child-inclusive (direct consultation) or child-focused (indirect consultation) models. Although Allport analyses this in detail, it can be said that both models have been developed considering that a child has just two parents and without making a distinction between the differences that the word ‘participation’ entails. As Roberts has suggested, child-inclusive mediation could embrace a broad range of practices which would confuse the role of the mediator (2015). I  would add that the dichotomy of child-inclusive/child-focused mediation risks oversimplifying the reality, with the consequence of leaving mediators without the appropriate skills to ensure a full degree of interaction for children raised in diverse families. This finite approach raises a number of questions of both a theoretical and practical nature. When there are more than two parents in dispute (and only some of them have parental responsibility), which parent(s) should give guidance on how to involve the child? Should the mediator prioritise the biological parents? Should he or she give a voice to all those with parental responsibility? Or should he or she consult all those whom the child considers to be a parent? When only two of a greater number of parents are in dispute, what role do those not involved in the dispute play in the mediation and, more importantly, in the decision on whether (and, if so, how) to involve the child? How should the mediator engage with potential power imbalances between parents with legal status (legal parents and those with parental responsibility) and those without it (social parents) without undermining the right of the child to participate?11 No immediate answers to these questions suggest themselves; they require further research and further engagement with practitioners and with children. I  submit, however, that three combined principles and approaches to children and their voice should inform future debates on appropriate models for the involvement of children in family mediation. The first is the principle of access to justice, the second is child’s protagonism and the third is the educational philosophy developed by Loris Malaguzzi. Cappelletti has pointed out that the principles of access to justice should inform alternative dispute resolution mechanisms (1993). Further, Galanter has suggested that access to justice has moving frontiers: more barriers to access to justice are identified, more victims of injustice become conscious of that and more claims to overcome barriers to access to justice are put forward (2010). In my view, when children are involved, access to justice is essentially multifaceted and multidimensional. It is strictly intertwined with other children’s rights; the barriers to access to justice take different shapes depending on the age of the children; and essentially, access to justice has subjective and objective dimensions. 239

Mediation for gender and sexually diverse relationships Overall, I  draw the definition of access to justice for children on the reading of several norms of the United Nations Convention on the Rights of the Child (UNCRC  1989). These include not only Article  12 (participation and respect for the views of the child), but also Article 13 (freedom of expression), Article  14 (freedom of thought, conscience and religion), Article  15 (freedom of association), Article  17 (access to appropriate information), Article  8 (right to identity) and Article  29 (right to education). In particular, access to justice presents an objective component and a subjective one. On the one hand, access to justice refers to the ability to obtain a remedy for the violation of rights; on the other hand, it includes the possibility for children to feel empowered in transforming the context in which the dispute they are involved in arose. In order to implement access to justice, attention must therefore be paid to the specific characteristics of each child, and to the instruments/means/ methods that can be used to inform children and that children can use to express their views and make changes. As Pinkney (2011) has pointed out, often the emotional and affective dimensions of children’s participation are not taken into consideration – but those dimensions have an impact on access to justice. Access to justice is therefore dynamic and requires a dialogic, non-hierarchical relationship between adults and children. However, research has emphasised some limitations that the UNCRC presents. Among others, two of such criticisms are important for the topic analysed here. A  first line of criticism suggests that the UNCRC reiterates the idea that the child is not capable of making his or her own decisions (Melton 2008). A  second critical interpretation of the UNCRC suggests that ‘the Convention refers to a universal, freestanding, individual child: a child who is on a particular developmental trajectory. It implies that biologically-based relations between parents and children are more fundamental and natural than other sorts of family or community relations’ (Mayall 2000: 245). I would add that when participation of the child concerns aspects of life such family, sexual orientation and gender identity, where the child might challenge heteronormative assumptions, a protectionist and paternalistic view is likely to inform consultation with children.12 Thus, my definition of access to justice encompasses what has been defined in particular in South American social movement activism and literature as ‘child’s protagonism’ (protagonism infantil). The current literature on the involvement of the child in family mediation does not focus on protagonism; whereas research on social work and education mainly developed with ethnographic reference to South America offers a more comprehensive application of the concept. According to Liebel, ‘protagonism infantil (child’s protagonism) refers to the ability of children to play an active role in this world and to contribute to its change’ (Liebel 2007: 62). Liebel adds: ‘In order to ensure that children embrace rights and make use of them for themselves, they must be conceptualized in a context specific way and give answers to the children’s life experiences’ (Liebel 2012: 2). In addition, as Cussiánovich points out, child’s protagonism encompasses ‘participation, representation, 240

Children in mediation projection, solidarity, self-reflection or identity, autonomy and continuity’ (Cussiánovich 2001: 166). Thus, participation is a stage of protagonism. Protagonism helps to contextualise participation and aims to make children able to transform the context in which they grow up. The concept of child’s protagonism offers, in my view, a fuller understanding of a child’s participation when considering family disputes. Overall, the presence of children has an impact on the cause of the dispute and on how resolution should be pursued. But the decision on whether to involve a child in a mediation process also transforms the dispute. The process might become even more complex when more than two people play a parenting role and are perceived as parents by the child, and where they are of the same sex or trans and do not all have parental responsibility. Thus, child’s protagonism sees children as also part of a community and with the agency to make changes affecting that community – the family is a community which children can contribute to shape. The final source to draw upon for a more engaged role of the child in family mediation is the educational philosophy of Loris Malaguzzi (Malaguzzi and Gandini 1993), also called the Reggio Emilia approach to early childhood education and beautifully encapsulated in the One Hundred Languages poem.13 The Reggio Emilia approach builds upon a variety of theories concerning childhood education and child development. At the core of its philosophy is the image of a child who ‘is rich in potential strong, powerful, competent, and, most of all, connected to adults and other children’ (Malaguzzi and Gandini 1993: 10). Such approach privileges a focus on relationships between children, and between children, teachers and families. That part of the Reggio Emilia approach which is important for the topic analysed here concerns knowledge. Knowledge is socially constructed and dynamic. The ways in which children learn and express their knowledge are varied and often differ from those of adults (Malaguzzi and Gandini 1993). Several practical implications of using the above principles and approaches during family mediation can be highlighted. First, the intersection of a broad meaning of access to justice, an approach to childhood based on child’s protagonism and the development of information drawing upon the Reggio Emilia educational approach emphasises participation, empowerment and agency. Attention is given to the individual needs and characteristics of each child in his or her context, and to the opportunity for each child to make decisions and changes. Translating this into family mediation would require us to avoid assumptions, for example, about parenting (the child’s perception of his or her parents should inform whom we consult as parents). Second, when designing mechanisms through which the mechanics of mediation should be conducted (eg, in crafting informative materials), account must be taken of the variety of family structures in which children are raised.14 Third, it is necessary to bear in mind that mediation is a modest intervention, so that it may be appropriate to resort also to a wider range of other interventions (eg, 241

Mediation for gender and sexually diverse relationships advocacy, therapy, social work, guidance) to meet the needs of children in these circumstances. And, perhaps more importantly, this will require a renewed discussion, involving the children themselves, on how to involve the children of sexually and gender diverse families in mediation models and processes.

Concluding thoughts This chapter has aimed to bring attention to the nature and resolution of family disputes in sexually and gender diverse families. It has been argued that a process of formalisation of mediation which privileges a normative model of families and relationships does not take into consideration the variety of families that LGBTQ+ partners create. Such approach minimises, among other things, the voice of the child raised in such families and the complex power dynamics that exist. Yngvesson has pointed out that: ‘A  disputing process is constituted by its practice in different cultural settings and that “disputes” are social constructs, defined and transformed as they are handled, rather than objective events that can be matched with appropriate resolution procedures. Thus what mediation or negotiation is depends upon the dynamics of specific structural relationships, on the normative contexts within which conflict emerges, and on the diverse interests and disparate power relationships of participants’ (1989: 112). Indeed, as this chapter has shown when looking at intra-family disputes in sexually and gender diverse families, the influence of structural inequalities and stigma should not be underestimated. The real sources of dispute might be rooted in more general structural inequalities against sexual minorities and in a still dominant heteronormative model of the family reified in law, in social policy and in society more generally. But family norms are constantly in motion (Murray et al 2019), and mediation should be at the vanguard of the movement to make them visible.

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Endnotes

Endnotes   1 I would like to thank Marian Roberts, Francesca Ammaturo, Craig Ling and Ben Kassatan for their valuable comments on the first draft of this chapter. All errors are mine.   2 The word ‘trans’ is used here to describe persons whose gender differs from the one assigned them at the birth (see Halberstam 2018).   3 Michael Warner explains that ‘heteronormativity’ is a term which refers to the ways in which ‘Het[erosexual] culture thinks of itself as the elemental form of human association, as the very model of inter-gender relations, as the indivisible basis of all community, and as the means of reproduction without which society wouldn’t exist’ (1998: xxi).  4 It is acknowledged here that multiple parents are not unusual in families based on different-sex heterosexual relationships, and that family mediation practices address this. However, family mediation practices have not yet acknowledged and adapted to the differences created by the intersection of stigma that still exists with regard to sexual orientation and gender identity, ethnicity, religion and age that sexually and gender diverse families present.  5 For an analysis of the sources of dispute, see Moscati ‘2014a and 2014b’. Generally speaking, sources of dispute include end of love; finance; whether and how to have an open relationship; whether and how to have children; child arrangements; inheritance; addiction to alcohol and drugs; and domestic abuse.   6 The term ‘cisgender’ defines the people whose gender identity corresponds to the sex they have been assigned at birth.   7 The literature on the development and use of the terms ‘queer’ and ‘queer theory’ is vast and offering a comprehensive overview of it falls outside the scope of this chapter. For an account on this, see Jagose (1996).   8 It is acknowledged here that the Code of Practice for Family Mediators developed by the Family Mediation Council (May 2018) suggests that: ‘Where a marriage or relationships has irretrievably broken down, mediation has regard to the principles that the marriage or relationship should be brought to an end in a away that: a) minimizes distress to the participants and to any children …’ However, the use of terms such as ‘marriage’ and ‘irretrievably broken down’ strongly reminds the reader about the language of legal statutes concerning marriage and divorce. Furthermore, civil partnerships are not included and relationships are not adequately defined.   9 In an effort to deal with power imbalances based on parenthood, the mediator should start the mediation by asking the parties how they see their parenting roles and then providing the opportunity for all parents to be involved in mediation. Accessed online at www.familymediationcouncil.org.uk/wp-content/uploads/2018/11/FMC-Code-ofPractice-v1.3-November-2018.pdf on 30 October 2019. 10 For an analysis of the manner in which heteronormativity is shaping legal proceedings concerning dissolution of civil partnerships, see Bendall and Harding (2019). 11 I appreciate that the Family Mediation Council Manual on Professional Standards and Self-Regulatory Framework acknowledges the existence of carers of the child and not only parents; and that if a parent or carer is not a participant in the mediation, this person can be consulted on whether and how to involve the child in mediation. However, the Manual still limits the number of parents/carers to two. 12 See, for instance, the Family Mediation Council Manual on Professional Standards and Self-Regulatory Framework. One of the guiding principles of the standards is that ‘Decisions remain with the child’s parents (or others holding PR): Children and young people may make requests and offer suggests, but they are not asked, or given power, to make choices or decisions’. Accessed online at www.familymediationcouncil.org. uk/wp-content/uploads/2019/06/FMC-Manual-of-Professonal-Standards-RegulatoryFramework-v1.3-Updated-June-2019.docx.pdf on 30 October 2019. 13 Accessed online at www.cdd.unm.edu/ecln/psn/common/pdfs/the%20child%20is%20 made%20of%20100.pdf on 30 October 2019. 14 The positive impact of visual arts on children has been acknowledged by research in several disciplines and by practice concerning children’s rights and in development discourse. Overall, in order to contribute their views, children need access to appropriate information and to safe spaces where they are afforded the time, encouragement and support to enable them to develop and articulate their views. This is why I transformed my

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Mediation for gender and sexually diverse relationships empirical data into a little book for children that mediators can use during mediation. The book aims to make the invisible visible: the pictures depict a variety of family structures that exist in the real world, but are unfortunately invisible from websites and informative material. In making the families visible, the book contributes to inclusiveness and empowerment of the children raised in those families and who will eventually be asked to participate during family mediation. The pictures acknowledge and celebrate such families. In doing so, the illustrations linked to children’s experience empower them and create support in encouraging the verbalisation of emotions which could eventually bring about the transformation of the dispute, the dispute process and its output, and therefore increase access to justice. The book also serves as a reminder that in the future, the study and practice of family mediation and of the involvement of children into family mediation should pay attention to the intersectionality between sexual orientation, gender identity and ethnicity. It further serves as an instrument to advocate respect for diversity among mediators, lawyers, judges and social workers. The title of the book is Rainbow after the Storm: Mylo and His Dads go to Mediation. Accessed online at http://sro.sussex. ac.uk/id/eprint/64093/1/MOSCATI_CHILDREN_FAMILIES_MEDIATION.pdf on 30 October 2019.

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References

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Mediation for gender and sexually diverse relationships Cussiánovich, A  (2001) ‘What does Protagonism Mean?’, in Liebel, M  et al (eds) Working Children’s Protagonism: Social Movements and Empowerment in Latina America, Africa and Asia (Frankfurt and London: IKO). Diamond, LM  (2009) Sexual Fluidity: Understanding women’s love and desire (Cambridge, MA: Harvard University Press). Dierckx, M and Platero, LR (2017) ‘The Meaning of Trans* in a Family Context’, Critical Social Policy, Vol 38 Issue 1 79–98. Donovan, C and Barnes, R (2017) ‘Domestic Violence and Abuse in Lesbian, Gay, Bisexual and/or Transgender (LGB and/or T) Relationships’, Sexualities Vol 22 Issues 5–6 741–50. Farr, RH  (2017) ‘Factors Associated with Relationship Dissolution and Post-dissolution Adjustment among Lesbian Adoptive Couples’, Journal of Lesbian Studies, Vol 21 Issue 1 88–105. Felstiner, W, Abel R  and Sarat A  (1980–81) ‘The Emergence and Transformation of Disputes: Naming, Blaming and Claiming’, Law & Society Review, Vol 15 631–54. Frost, DM and Leblanc, AJ (2019) ‘Stress in the Lives of Same-Sex Couples: Implications for Relationship Dissolution and Divorce’, in Goldberg, AE and Romero, AP (eds) (2019) LGBTQ Divorce and Relationship Dissolution (Oxford: Oxford University Press). Galanter, M  (2010) ‘Access to Justice in a World of Expanding Social Capability’, Fordham Urban Law Journal, Vol 37 115–28. Gartrell, N, Bos, H, Peyser, H, Deck, A  and Rodas, C  (2011) ‘Family Characteristics, Custody Arrangements, and Adolescent Psychological Well-Being after Lesbian Mothers Break Up’, Family Relations, Vol 60 Issue 5 572–82. Goldberg, AE and Romero, AP (eds) (2019)  LGBTQ  Divorce and Relationship Dissolution (Oxford: Oxford University Press). Goldberg, AE, Moyer, AM, Black, K  and Henry, A  (2014) ‘Lesbian and Heterosexual Adoptive Mothers’ Experience of Relationship Dissolution’, Sex Roles, Vol 73 Issues 3–4 141–56. Goldberg, AE and Garcia, R (2015) ‘Predictors of Relationship Dissolution in Lesbian, Gay, and Heterosexual Adoptive Parents’, Journal of Family Psychology, Vol 29 Issue 3 394–404. Gunning, I (1994) ‘Mediation as an Alternative to Court for Lesbians and Gay Families: Some Thoughts on Douglas McIntyre’s Article’, Mediation Quarterly, Vol 13 43–52. 246

References Halberstam, J  (2018) Trans*: A  Quick and Quirky Account of Gender Variability (Oakland: University of California Press). Hanson, M (2006) ‘Moving Forward Together: The LGBT Community and the Family Mediation Field’, Pepperdine Dispute Resolution Law Journal, Vol 6 295–312. Herbrand, C  (2018) ‘Ideals, Negotiations and Gender Roles in Gay and Lesbian Co-Parenting Arrangements’, Anthropology & Medicine, Vol 25 Issue 3 311–28. Hertz, F  and Geldenhuys, M  (2015) ‘Mediating Same-Sex Separation and Divorce in Today’s America: Navigating the New Realities of a Transformed Legal Landscape,’ in Lorenzetti, A  and Moscati, MF (eds) Access to Justice and LGBTI Persons (London: Wildy, Simmonds and Hill Publishing). Hertz, F  (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks. Part I’, Family Mediation Quarterly, Vol 7 24–28. Hertz, F (2008) ‘Mediating Same-Sex Disputes: Understanding the New Legal and Social Frameworks. Part II’, Family Mediation Quarterly, Vol 7 7–12. Hertz, F, Wald, D  and Shuster, S  (2009) ‘Integrated Approaches to Resolving Same-Sex Dissolutions’, Conflict Resolution Quarterly, Vol 27 Issue 2 123–43. Hines, S (2006) ‘Intimate Transitions: Transgender Practices of Partnering and Parenting’, Sociology: The Journal of British Sociological Association, Vol 40 353–71. Hoffman, DA and Triantafillou, K (2013) ‘Cultural and Diversity Issues in Mediation and Negotiation’ in Parekh, R (ed) The Massachusetts General Hospital Textbook on Diversity and Cultural Sensitivity in Mental Health (Berlin: Springer). Jagose, A  (1996) Queer Theory: An Introduction (New York: New York University Press). Khaddouma, A and Norona, JC (2015) ‘Individual, Couple and Contextual Factors Associated with Same-Sex Relationship Instability’, Couple and Family Psychology: Research and Practice, Vol 4 Issue 2 106–25. Kurdek, LA (1991) ‘The Dissolution of Gay and Lesbian Couples’, Journal of Social and Personal Relationships, Vol 8 Issue 2 265–78. Kurdek, LA (1997) ‘Adjustment to Relationships Dissolution in Gay, Lesbian, and Heterosexual Partners’, Personal Relationships, Vol 4 Issue 2 145–61. 247

Mediation for gender and sexually diverse relationships Liebel, M (2007) ‘Paternalism, Participation and Children’s Protagonism’, Children, Youth and Environments, Vol 17 Issue 2 56–73. Liebel, M (2012) Children’s Rights from Below. Cross-Cultural Perspectives (London: Palgrave MacMillan). Malaguzzi, L  and Gandini, L  (1993) ‘For an Education based on Relationships’, Young Children, Vol 49 Issue 1 9–12. Mayall, B  (2000) ‘The Sociology of Childhood in Relation to Children’s Rights’, The International Journal of Children’s Rights, Vol 8 243–59. Maupin, A (1984) Further Tales of the City (London: Transworld Publisher). Melton, GB (2008) ‘Beyond Balancing: Toward an Integrated Approach to Children’s Rights’, Journal of Social Issues, Vol 64 Issue 4 903–20. Meier, SC, Sharp, C, Michonsky, J, Babcock, JC and Fitzgerald, K (2013) ‘Romantic relationships of female-to-male trans men: a descriptive study’, International Journal of Transgenderism, Vol 14 Issue 2 75–85. Moscati, MF  (2014a) Pasolini’s Premonitions: Same-Sex Couples and the Law in Comparative Perspective (London: Wildy, Simmonds and Hill). Moscati (2014b) Same-Sex Couples and Mediation: A Practical Handbook. For European Commission – Directorate General of Civil Justice – Project: Litigious Love: Same-Sex Couples and Mediation in the EU; accessed online at http://sro.sussex.ac.uk/id/eprint/54466/1/2015_MOSCATI_ SS_COUPLES_MEDIATION.pdf on 25 October 2019. Moscati, MF (2015a) ‘Same-Sex Couples and Mediation: An Overview’ in Moscati (ed) Same-Sex Couples and Mediation in the EU (London: Wildy, Simmonds, and Hill). Moscati, MF  (2015b) ‘England’ in Moscati (ed) Same-Sex Couples and Mediation in the EU (London: Wildy, Simmonds, and Hill) 14. Moscati, MF  (2020) ‘Dispute Resolution, Domestic Violence and Abuse between Lesbian Partners’, in Ashford, C  and Maine, A  (eds) Research Handbook on Gender, Sexuality and the Law (Cheltenham: Edward Elgar Publishing). Murray, L, McDonnell, L, Hinton-Smith T, Ferreira, N and Walsh, K (2019) Families in Motion: Ebbing and Flowing through Space and Time (Bingley: Emerald Publishing Limited). Palmer, M  (2014) ‘Formalisation of Alternative Dispute Resolution Processes: Some Socio-Legal Thoughts’ in Zekoll, J, Balz, M and Amelung, I  (eds) Alternatives to Formalisation: Formalisation of Alternatives? (Leiden and Boston: Brill). 248

References Patterson, CJ (2013) ‘Family Lives of Lesbian and Gay Adults’ in Peterson, GW and Bush, KR (eds) Handbook of Marriage and the Family (Berlin: Springer). Pfeffer, CA and Castaneda, NN (2019) ‘Trans Partnership and Marriage. Risk Factors for Conflict, Dissolution, and Divorce’ in Goldberg, AE and Romero, AP (eds) (2019)  LGBTQ  Divorce and Relationship Dissolution (Oxford: Oxford University Press). Pinkney, S  (2011) ‘Participation and Emotions: Troubling Encounters Between Children and Social Welfare Professionals’, Children & Society, Vol 25 37–46. Prior, EE (2018) ‘Introduction’, in Swan, DJ and Habibi, S (eds) Bisexuality. Theories, Research and Recommendations for the Invisible Sexuality (Berlin: Springer). Pyne, J, Bauer, G and Bradley, K (2015) ‘Transphobia and other Stressors Impacting Trans Parents’, Journal of GLBT Family Studies, Vol 11 107–26. Rich, A  (1980) ‘Compulsory Heterosexuality and Lesbian Existence’, Signs: Journal of Women in Culture and Society, Vol 5 Issue 4 631–60. Roberts, M (2016) ‘A View from the Coal Face: Interdisciplinary Influences on Family Mediation in the United Kingdom’, in Foster, N, Moscati, MF and Palmer, M  (eds) Interdisciplinary Study and Comparative Law (London: Wildy, Simmonds and Hill). Roberts, M (2015) ‘Children and Mediation: A Response to the Ministry of Justice Report on The Voice of the Child in Dispute Resolution’, Family Law, Vol 45 1531–36. Rostosky, SS and Riggle, EDB  (2017) ‘Same-Sex Relationships and Minority Stress’, Current Opinion in Psychology, Vol 13 29–38. Rostosky, SS and Riggle, EDB (2019) ‘What Makes Same-Sex Relationships Endure’ in Goldberg, AE and Romero, AP (eds) (2019) LGBTQ Divorce and Relationship Dissolution (Oxford: Oxford University Press). Samons, SL  (2009) ‘Can This Marriage be Saved? Addressing Male-toFemale Transgender issues in Couples Therapy’, Sexual and Relationship Therapy, Vol 25 152–62. van Eeden-Moorefield, B, Martell, CR, Williams, M and Preston, M (2011) ‘Same-Sex Relationships and Dissolution: The Connection Between Heteronormativity and Homonormativity’, Family Relations, Vol 60 562–71. Warner, M (1993) Fear of a Queer Planet. Queer Politics and Social Theory (Minneapolis: University of Minnesota Press).

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Chapter 13

Creative paths to practice: helping new mediators to navigate the route to artistr y Lorraine Bramwell

Introduction Training as a family mediator – then and now, a personal perspective My experience as a new mediator in the early 1990s was typical of many who trained at the time. I was an experienced professional with a background in family support and community work, and was recruited by a local mediation service that was part of a national mediation charity with a ‘bottom-up’ approach to management and development. Local services led the direction and ethos of the national charity, ensuring that it met the needs of its member services. I therefore stepped in to a wellsupported structure with access to free and, by today’s standards, lengthy training. I had instant access to mediation cases, initially to observe, then to co-work with different members of the experienced mediation team. As I gained skills and confidence, I began to lead mediation sessions, finally mediating alone when I was ready. Throughout I  had ready access to support and supervision, as well as an experienced administration team. Regular ongoing training was provided free of charge. All I had to do was hone my skills, knowledge and experience as a mediator in this nurturing environment. I even got paid to do it. I was very privileged. Some 25 years later, now a trainer of family mediators, I find myself having to explain a complex and muddled picture of partial self-regulation to enthusiastic and often talented new mediators. I have to warn them that while family mediation is a hugely rewarding, if challenging career, only the most determined of them will make it from trainee to professional family mediator. After a quarter of a century of false dawns, mediation has finally come of age in the UK to be regarded as the solution of first resort for most families in dispute. The need for well-trained and supported family mediators has never been greater. Yet career progression from trainee mediator to accreditation is notoriously difficult. There are currently 251

Helping new mediators to navigate the route to artistry fewer than 1,000 accredited family mediators in England and Wales (Family Mediation Council 2018), and there are concerns that the route to accreditation for family mediators is overly arduous. Yet the limited nature of current regulation means that it provides only partial protection to the public and the reputation of the family mediation profession. The current arrangements for the training and accreditation of family mediators thus neither adequately support those embarking on a family mediation career nor fully protect the public from poor-quality mediation practice. This chapter outlines the training and accreditation process for family mediators and the strengths and limitations of the current system in England and Wales. It goes on to explore the creative ways in which new mediators are gaining practice experience, despite current challenges. Finally, it considers how we can best facilitate the succession of family mediation to the next generation of practitioners, while ensuring the quality and safe practice of family mediation provision.

Making better mediators The purpose of standards in mediation training and practice Before exploring the current arrangements for the training and regulation of family mediators, it is worth first considering the purpose of standards in mediation training and practice. Many writers have considered the elusive qualities that make a good mediator and the degree to which training and practice standards contribute to or inhibit their development (Bowling and Hoffman 2003; Lang and Taylor 2000; Le Baron 2002; Roberts 2007). Historical reticence to set standards for training and practice has two sources: not wishing to make compliance with standards so onerous or expensive that it is impractical; and wishing to protect the diversity and creativity of the mediation profession, including the range of styles, theories and approaches that support it. However, the principal purpose of setting standards in training and practice is to ensure the quality and safety of mediation for the benefit of the public. Achieving this, while avoiding the above concerns, requires clarity on what we mean by a ‘good’ mediator, to ensure that the standards put in place encourage the development of the relevant attributes. Roberts’ (2007) study of the views of a number of mediators from a range of mediation fields explored the notion of mediation as a ‘craft’: a combination of skills and experiential knowledge learned through training; the development of practice skills, refined and deepened over time; reflection; and a range of personal attributes – the mediator perfecting his or her art in relation to the needs of those he or she seeks to serve. Roberts argues that what makes mediation a craft is the practitioner’s dedication to his or her work and the pursuit of quality. This journey towards excellence is supported by others working in the field ‘in the guildhall mode’ (Roberts 2007: 229). Here, mediators develop their craft over time through an 252

Making better mediators apprenticeship model of learning, coupled with ongoing professional development and the sharing of knowledge and experience through a network of peers. Lang and Taylor (2000) describe a similar concept of ‘artistry’, where mediators’ growth and development towards artistry emerge from an understanding of the various elements that make up their ‘Constellation of Theories’. Lang and Taylor depict this constellation as a set of integrated concentric circles. At the centre are a mediator’s core values and beliefs, with further layers holding a mediator’s concepts and unifying theories, models and approaches and, in the final outermost level, the policies, procedures and wider legal system in which the mediator is operating. Lang and Taylor (2000), Roberts (2007) and Bowling and Hoffman (2003) see the attainment of artistry or craftsmanship as a mediator’s ability to effectively combine and use his or her practical skills, knowledge of theory and personal knowledge and attributes in a way that most appropriately links with the needs of the individuals in dispute. Similarities between these and other attempts to define the attributes that make a good mediator have led the current author to suggest that mediators use ongoing transformative or evolutionary learning, utilising reflective practice, to draw on five key drivers of development in their journey from novice through competency towards artistry or craftsmanship (Bramwell 2010). These are as follows: • Technical awareness: the ability to use a wide range of models, styles, skills, processes and techniques learnt through training, together with the knowledge and confidence to draw on them appropriately. •

Theoretical awareness: an understanding of why certain models, styles, skills, processes and techniques might be appropriate in particular circumstances, and an awareness of the body of knowledge that theorises the nature of mediation as a negotiation process. A requirement that a mediator know what he or she is trying to achieve by employing a particular approach based on an understanding of the theoretical assumptions that underpin it.1

• Practice experience: a source of knowledge that emerges from the practice of mediation. A growing personal database of the range of ways the application of models, styles, skills, processes and techniques might affect a particular situation or dispute, and indeed how comfortably these sit with the personal style of the individual mediator. • Self-awareness: an understanding of how a mediator’s own, values, culture, gender, upbringing, prejudices and personal experience impact on how he or she mediates and how he or she is perceived by the parties in mediation, and the potential effects this may have on the mediation process. 253

Helping new mediators to navigate the route to artistry •

Client awareness: the mediator’s capacity for genuine interest in and empathy for the parties in mediation and an understanding of their needs and expectations of the mediation process and its outcomes. This also includes the ability to be courageous, take risks and cope with ambiguity, while being mindful of what each party needs to take part in mediation on an equal basis.

It is the dynamic integration of information from these sources, during mediation, beforehand in planning and afterwards in reflection, which contributes to the artistry or craftsmanship of a mediator (Schön 1983; McAlpine and Weston 2002). Reflective practice is the mechanism by which this integration takes place, providing a means for a mediator to explore, develop and increase his or her awareness and understanding of the information available. 2 As a mediator’s practice develops, any one of these sources can provide the ‘energy’ to power this system (Brockbank 2002) – for example, the learning of a new theory, an experience in a mediation session, a personal insight which impacts on a mediator’s core values or a new mediation skill. Reflective practice allows the energy created by this source to be understood, combined and integrated with the other drivers of development and then utilised to respond creatively to the situation in hand. It is important to keep these sources of information in relative balance. Overemphasis on any one area can unhelpfully distort practice, and is often behind many of the valid criticisms of standard setting and regulation of mediation training and practice – for example, the emphasis on theoretical knowledge rather than skills or practical experience (South 2009); the lack of a theoretical basis for mediators’ practice (Lang and Taylor 2000); the failure to integrate theoretical knowledge with practical experience (Wilson 2004); or the emphasis on models and styles rather than client needs (Mayer 2004; Cloke 2007). The requirements for the training and regulation of family mediators should therefore be designed to engender the acquisition and development of information from these five sources and the ability to process and use this information effectively through reflective practice. Some strides are being made towards this. However, a lack of clarity about the purpose of standard setting in family mediation, combined with a long history of unhelpful competitiveness among professional mediation bodies, has led to a confused picture for both the public and new mediators starting out in the profession.

Training and regulation in the UK Understanding a confusing landscape Today, those wishing to train and work as a professional family mediator face an array of training providers claiming various types of recognition 254

Training and regulation in the UK for their courses. Some of these have sought independent scrutiny of their training to show that they meet recognised standards; but since there is nothing stopping anyone from calling themselves a family mediator or mediation trainer, trainees find it difficult to determine which providers will deliver quality training, leading to professional recognition and regulation of their practice. This confusing picture is the result of a narrow definition of family mediation and numerous professional bodies competing to represent this narrow area. In reality, only part of the profession is regulated, presided over by five professional bodies.3 What is often described as ‘family mediation’ is in fact the mediation of family disputes arising from the end of couple relationships, separation and divorce. A  wider definition of ‘family mediation’ covers all manner of family disputes, including intergenerational disputes and disputes between a range of family members associated with finances, inheritance, business and the care of adult dependants, to name but a few. Mediation over matters arising from the end of relationships, separation and divorce has been the focus of the development of standards of practice for many years, initially through the UK College of Family Mediators (now the College of Mediators) and in England and Wales since 2007 through the Family Mediation Council (FMC). There is currently no expectation that the rest of the family mediation profession practises to specific standards, though many practitioners choose to work to voluntary standards set by the College of Mediators. To date, the title ‘mediator’ is not a legally protected title and the practice of mediation is not subject to statutory regulation (Barlow et al 2017). This fact sits somewhat uncomfortably alongside successive governments’ increased encouragement of the use of family mediation. Family mediators, particularly those dealing with relationship breakdown and its aftermath, are working with people at a very vulnerable point in their lives. Dealing with issues around children’s and adults’ safety and mental well-being, and managing high emotion, are common occurrences for those dealing with families in dispute. It is thus surprising that the title of family mediator has little protection to safeguard the public from those who are not adequately trained and supported to deal with these matters. Separation and divorce family mediation, where parties may need to resort to the courts, is subject to government-supported self-regulation by the FMC, a coalition of five of the most established family mediation professional bodies. The FMC is currently recognised by the government as the voice of the profession and its regulator. The FMC itself, however, describes itself simply as a ‘common platform for family mediation’s national organisations to negotiate with government and other stakeholders’. This is a common model of self-regulation for mediation provision in the UK. Whitehouse (2017) and others have outlined the 255

Helping new mediators to navigate the route to artistry limitations of a model of regulation controlled by large service providers with a potential commercial conflict of interest. Ongoing concerns about this within the profession, together with reference to the need for more independence in the setting and monitoring of standards of mediation training and practice in several reports (Family Justice Review final report 2011; McEldowney 2012), led to the creation of the Family Mediation Standards Board (FMSB) in 2015. While this might have offered an opportunity to establish the independent regulator that is perhaps needed, the FMSB has only a quasi-independent role. It describes itself as ‘an independent standards and regulatory body under the umbrella of the FMC’ (FMC 2015), and is made up of individual professionals from both within and outside the profession. The relative status of these two bodies, with the independent regulator of professional standards seemingly under the direct authority of the national bodies it regulates, does not inspire confidence in its ability to protect the interests of the public. Nonetheless, for the time being, separation and divorce family mediators have accepted and adopted this structure. Therefore, those mediators who want to practise as a family mediator in England and Wales must be trained to FMC standards by a training provider whose course has been approved by the FMSB. They must also meet the ongoing post-training requirements and accreditation (FMC accreditation (FMCA)). Any family mediation outside England and Wales and a range of other types of family mediation are untouched by the FMC. Many ethical professionals in these areas have sought to make arrangements for independent regulation through bodies such as the College of Mediators. But for those less concerned with providing safe, good-quality mediation to families, there is nothing stopping them from setting themselves up as a family mediator. Few would dispute the value of using mediation rather than litigation to decide the future of children and families in appropriate cases, and this has led to the requirement for most people considering a court application for private family matters to at least consider mediation first. This is demonstrated by the requirement for an FMCA mediator’s signature on a court application form. This, however, is the only control over who can present themselves as a family mediator, leaving ample space for untrained and unregulated practitioners to potentially cause considerable harm. This can result in extra costs for a public unaware of the complexities of this partially regulated system and, worse still, the loss of the opportunity to have resolved matters more quickly, cheaply and satisfactorily through good-quality, professional family mediation. Despite the current limits to regulation allowing the entrepreneurial amateur to take commercial advantage of the increased encouragement of mediation, it is perhaps reassuring to note that there is still a ready supply of dedicated new mediators who want to train and practise to the highest standards available. 256

Training and regulation in the UK Family Mediation Council accreditation Achieving FMCA marks a family mediator’s arrival as a fully qualified family mediator in England and Wales. This replaced a longstanding previous scheme of competence assessment developed by the UK College of Family Mediators (now the College of Mediators), but owes much to it in terms of its overall style of assessment. (Roberts 2014). Like its predecessor, achievement of FMCA is designed to show a level of competence in practice, an understanding of the theory underpinning practice and the ability to reflect and learn from experience, training and study. On successful completion, it enables family mediators to issue mediation outcome documentation unsupervised, to sign court forms confirming that mediation has been considered or attempted, and to provide family mediation funded by the Legal Aid Agency (LAA) (where they have or work for a provider with a legal aid contract). Oddly, even this aspect of the self-regulation of the family mediation profession is not entirely straightforward, as a parallel scheme deemed equivalent to FMCA is run by the Law Society. This parallel course has existed since competence assessment for family mediators was introduced in 1996. It would have made sense to have taken the opportunity to create a single route to accreditation and this added complexity is perhaps another example of the separate interests of national professional bodies overriding the profession’s need for a clear, single and uniform route to full qualification. Achieving accreditation within three years of initial training has proved a challenge for many new mediators. The key difficulty in achieving FMCA status is the lack of opportunities to gain practice experience and gather sufficient material for completion of the portfolio-style assessment. Figures from a recent survey by the FMC and FMSB suggest that obtaining cases which resulted in written proposals was one of the biggest hurdles to achieving FMCA, with over 75 per cent of respondents reporting achieving this as either challenging or very challenging. The costs of working towards FMCA were cited as problematic for around 60 per cent of respondents and understanding the portfolio process itself appearing to be a challenge in some 80 per cent of cases (FMC 2019b). Despite this, once submitted, a majority of portfolios result in the award of FMCA status, with most of the rest receiving conditional approval subject to the submission of further evidence. Successful completion of the portfolio requires mediators to show that they are at least competent (as defined by the Dreyfus model), ‘but also show development towards the “proficient” level’ (FMC 2014: 20).4 Newly accredited mediators therefore are often still at the beginning of their journey towards ‘craftsmanship’ (Roberts 2007) or ‘artistry’ (Lang and Taylor 2000). Post accreditation, the requirement for structured opportunities for reflection and learning through supervision falls to a minimum of four hours a year. Opportunities for more supervision than this tend to be available to larger practices, where a structured timetable 257

Helping new mediators to navigate the route to artistry of individual and group supervision and in-house training is more likely to exist, often paid for by the organisation. For the increasing number of small practices and solo practitioners who are perhaps those in greatest need of support, the costs of individual supervision and attendance at training events are an obvious disincentive for some to go beyond the minimum requirement. Current standards for England and Wales The current standards and procedures for training and supporting family mediators from novice to accreditation go some way towards encouraging development in the five key drivers of professional development. For mediators working towards FMCA, focus on these can be found in both the requirements of the initial training courses and the requirements of the FMCA portfolio. The standards required of recognised training oblige courses to address areas of theoretical, technical and self-awareness. Aspects of client awareness are perhaps more difficult to teach and measure, though those around safety concerns and power imbalance are addressed. Practice experience is central to training courses, with a considerable emphasis on the practice of mediation skills in a roleplay setting and at accreditation in the requirement to report and reflect on real cases undertaken post training. It is difficult to regulate training and accreditation to ensure that it conveys the ethos of respect for clients, which underpins much of a good mediator’s work. The requirement for reflective practice is more evident in the FMCA requirements than in initial training courses. This is a shame, as the ability to reflect on practice is the process by which the five key drivers of development are drawn upon and combined. Teaching the ability to reflect on practical experience, skills development, theoretical learning and personal development on initial training courses is key to the quality of learning experience, both on the course and in practice. The lack of the specific requirement to teach reflective practice does not, of course, mean that recognised courses do not do so; some certainly do. Its absence as a requirement, however, disadvantages trainees facing the practical and developmental challenges of the next stage of their journey. Other regulation and training Earlier in this chapter, it was noted that the self-regulation of the family mediation profession in the UK is only partial, both geographically and in the area of family dispute. The FMC’s predecessor, the UK College of Family Mediators, was – as its title suggests – a UK-wide independent standard-setting body for family mediation. What Roberts described as the now College of Mediators’ ‘rich body of quality assurance material’ has continued to be utilised by those working outside the FMC’s narrower remit (Roberts 2014). Though there is no requirement for them to do 258

The journey from trainee mediator to FMCA so, mediators who work with family disputes other than separation and divorce have chosen to show that they meet the independent standards set by the College of Mediators for training and practice. This has included practitioners working, for example, on intergenerational disputes between young people and their parents. Family mediation training in Scotland and Northern Ireland, run by Relationship Scotland and Family Mediation Northern Ireland respectively, is still validated by the College of Mediators. These bodies are also their recognised national providers of mediation to families affected by relationship breakdown. As in England and Wales, the path to becoming a fully qualified family mediator involves recognised training, a period of supervised practice followed by a further assessment of competence. Family mediation in Scotland is covered in detail in a separate chapter in this book.5 In Northern Ireland, mediators can choose to work towards accreditation post training with either the College of Mediators, which is a portfoliobased assessment, or the Mediators Institute of Ireland (Family Mediation Northern Ireland website 2019). In most cases mediators are selected, trained and supported in practice post training by these bodies as they provide both mediation training and mediation provision.

The journey from trainee mediator to FMCA The prospective family mediator is faced with a range of challenges to overcome in the journey from novice to accredited professional status and beyond. The supportive framework needed to nurture the mediator’s professional development has yet to be fully achieved. While there are steps in the right direction, arbitrary selection criteria, difficulties finding adequate post-training experience and extra preaccreditation supervision costs may well be narrowing the range of candidates and adversely influencing the diversity and skills of those joining the profession. The current difficulties that new mediators face in successfully entering the mediation profession also raise concerns about the mechanisms for the effective transfer of the knowledge and skills, gained over some 30 years, to the next generation of family mediators. The current route to accreditation and the challenges faced at each point are explored below. Finding the right course The first challenge facing the prospective family mediator is finding an appropriately recognised course. While any number of courses are available, only a handful are FMC approved foundation training courses. Enrolling on one of these recognised courses is essential if you wish to progress as a family mediator and achieve FMCA status. Before 2015, the quality and content of the main family mediation training providers were assumed to be adequate and roughly equivalent; but – 259

Helping new mediators to navigate the route to artistry with the notable exception of family mediation training approved by the College of Mediators – this was never independently verified. One of the first actions of the FMSB was to set standards for training and practice and oversee their implementation. The introduction of these standards has led to more choice in the family mediation training market, while ensuring some consistency in quality of training provision. Courses are now assessed against criteria set out in the 2014 standards framework and family mediation foundation courses are measured against these. Current approved courses vary in length from the minimum of eight days to 12 days for the longest foundation course. ‘Courses should meet, as a minimum, the requirements for level 5 in the Qualifications and Credit Framework, Framework for Higher Education Qualifications’ (FMC 2014: 25). FMC-approved foundation training courses are expected to comply with a range of standards, including course administration, qualifications and expertise of trainers, assessment procedures and post-training support. An assessment of both practical and written mediation skills through roleplay simulation and written assignments is required. There are clear requirements for methods of training and the balance of practical and theoretical input. These requirements are consistent with or exceed what has been widely recognised as the minimum for family mediation training in terms of duration, proportion of different training delivery style, key skills taught, theory and qualifications and experience of trainers (Moore 2014). Trainee mediators must complete at least 60 hours of training. Up to half of this can be done remotely through structured online or distance learning, but there is a strong practice focus, with at least 50 per cent of the minimum required hours devoted to skills development, generally through roleplay exercises. Currently, approved courses vary in the degree to which they merely meet or exceed this minimum requirement, with three of the eight recognised courses exceeding the minimum eight days and opting for face-to-face tuition over distance learning. There are specific entry requirements for applicants on FMC-approved courses. The requirement to be qualified to degree level has raised some questions, as its value is not supported by the literature in this area (Lang and Taylor 2000; Roberts 2010). Roberts argues that fixing mediation qualifications to particular levels or types of academic qualification may be inappropriate, noting that European guidance states that that there should be: ‘“a high degree of flexibility in relation to qualifications and experience” (S  33, p15). This accords with the approach of the Society of Professionals in Dispute Resolution (SPIDR) that no particular type of degree or prior education or job experience has been shown to be an effective predictor of success as a mediator, 260

The journey from trainee mediator to FMCA arbitrator or other professional “neutral” (SPIDR Commission on Qualifications, 1989)’ (Roberts, 2010). The FMC standards do permit some leeway on this requirement, allowing discretion for the training provider to allow entry to those who hold an ‘equivalent-level professional qualification, or experience of work in a role that requires an equivalent level of thinking and application’ to that required in a degree (FMC 2014). How this discretion is exercised by training providers is unclear and unmonitored. The unnecessary emphasis on a graduate-level education to train as a family mediator may limit the profession’s diversity by discouraging those who have not had the benefit of a higher education, but nonetheless show considerable natural aptitude as a mediator.6 Post-training requirements and challenges The key requirements to begin practice as a family mediator in the UK have changed little over the years. Professional mediators working in the field of separation and divorce are expected to belong to a suitable professional body, be adequately insured, commit to a required number of hours of professional development and training, and undertake a minimum number of hours of mediation practice per year. They are also required to have a named and appropriately trained senior practitioner to act as their supervisor or Professional Practice Consultant (PPC). A PPC is an experienced accredited family mediator who supports a mediator’s work and professional development. Supervision has always been a key feature in the quality control of family mediation provision in the UK; the term ‘PPC’ was devised to describe this role in 1996. All professional family mediators who are registered with any of the FMC professional bodies are required to have their own PPC and to have a minimum number of consultation hours every year. For new mediators embarking on their careers, a PPC forms the cornerstone of their post-training development. FMC guidance states that: ‘The core role and responsibilities of Professional Practice Consultants (PPCs) to their consultees can be divided into three key areas: support in their mediation practice, professional development (and) adherence to the FMC  Standards Framework and Code of Practice’ (FMC 2019a). In a profession where practitioners often work alone, a PPC is often the only person who has access to information about a mediator’s level of competence and adherence to professional codes of practice. It is considered best practice (FMC 2019a: sec3 A vii) for a PPC to observe consultees in mediation sessions from time to time. This is also a recognised way for mediators’ practice to be assessed by the LAA (LAA 2018: 48). Observation of a mediator in practice is, however, obligatory only for newly trained mediators just embarking on practice on a minimum of one occasion as part of the FMCA requirements. 261

Helping new mediators to navigate the route to artistry The PPC role is therefore seen as predominately a supportive and developmental one, rather than one of ‘policing’ the profession; and indeed in the case of a complaint against a consultee, the PPC’s role is to advise and support the mediator through any complaints or grievance process, while ensuring that he or she does not play a formal investigatory or adjudicatory role (FMC 2014). In the case of serious malpractice or ongoing breaches in professional codes of practice which are unaffected by a PPC’s efforts to help a consultee improve, the FMC requires that the consultee be reported to his or her professional body and the FMC, with the PPC generally withdrawing at that stage. A PPC to a newly trained mediator has additional responsibilities to help him or her embark on a mediation career. This includes helping new mediators to navigate their way through the post-training requirements prior to practice, such as ensuring that they have observed at least one actual mediation session and reflected upon it, and have conducted a precase planning and post-case review of a new mediator’s first mediation case. The PPC is also required to check mediation outcome documentation sent to clients and sign court forms on the consultee’s behalf where mediation has proved unsuitable or unsuccessful. PPCs also have a role in supporting and advising a consultee in his or her efforts to achieve accreditation. Their role is predominately to help consultees reflect on their mediation work and identify what further training and development they need to meet accreditation requirements. Their role, however, does not extend to providing the essential early practice experience to consultees. In the past, when PPCs were often part of a larger service offering a package of training, apprenticeship and support, this was more common. Today, with a shortage of qualified PPCs and limited service-based practice opportunities, it is more difficult for PPCs to offer regular opportunities for consultees to practise with them on their own cases. The requirement to practise For many years, newly trained family mediators were expected to have a period of supported practice before being allowed to practise on their own. This entailed a period of observation of experienced mediators mediating cases, followed by co-working with an experienced mediator, initially in a minor supporting capacity but – with time and growing confidence, experience and skill – gradually switching to taking the lead, with the experienced mediator acting in the supporting role. Eventually, new mediators, supported in their practice and development in this way, would be deemed able to practise mediation on their own. This period of what was commonly known as ‘supervised practice’ was expected to be at least 10 hours of co-worked mediation. At the time (as now), nonaccredited mediators were not permitted to do legally aided mediation and this prompted the adoption of the 10-hour rule as part of the concept of ‘readiness to practise’. This provided a way of approving mediators’ abilities to enable them to co-work on legally aided cases before accreditation, opening up this rich source of practice and experience opportunities. 262

The supported experience gap – challenges for mediators Changes in the family mediation landscape, however, made it increasingly difficult for mediators to gain access to 10 hours’ practice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which the government predicted would lead to a large rise in the take-up of mediation, in reality led to a very rapid 66 per cent fall in legally aided mediation referrals (Law Society 2017; Ministry of Justice 2019). The impact on a number of mediation organisations was swift and devastating. Many closed, eliminating a key source of post-training experience.7 With larger legally aided services greatly diminished and those remaining feeling under threat of closure, the appetite for supporting the development of mediators who could potentially become their commercial competitors was greatly reduced. Supporting a new mediator from novice to accreditation was also seen as a net drain on a mediation practice’s resources, rather than an injection of energy and fresh ideas. Smaller private mediation practices that have emerged in the wake of the postLASPO loss of larger providers are equally unwilling or unable to take on trainees for similar reasons. As a result of these difficulties, the need for a period of co-worked practice was abandoned by the FMC, replaced simply with the requirement to observe and reflect upon one mediation session conducted by an accredited mediator. Once registered with the FMC, newly trained mediators can therefore begin to practise on their own almost straightaway. The 10-hour rule has been replaced by a requirement to have 10 hours of additional supervision with a PPC. This provides helpful extra time to reflect on practice while working towards accreditation, but it does not provide the same level of support in early practice or protection for either the new mediator or his or her clients, potentially leading to early negative experiences for both. In reality, only the most confident and competent new mediators at one end, and the most irresponsible and inexperienced at the other, will choose to mediate alone as soon as they complete foundation training. Most new mediators rightly feel that their work should be overseen and supported by a competent co-worker in their early mediation sessions. Lack of experience in spotting potential problems in mediation sessions and dealing with them effectively means that early cases are likely to be the most challenging for new mediators. This is a period when confidence as a mediator can be both built and just as easily destroyed by the successes and failures of early practice experience.

The supported experience gap – challenges for mediators between training and accreditation The piecemeal and somewhat disjointed nature of standard setting in family mediation presents the new mediator working towards accreditation with some difficulties post training. There is an unsupported chasm 263

Helping new mediators to navigate the route to artistry between training and accreditation which is difficult to traverse without considerable time, determination, luck and financial resources. The lack of a fully thought-through approach as to how mediators gain the necessary post-training experience to achieve accreditation serves to further discriminate against mediators who voluntarily choose to work to professional standards, but do not have the financial resources and time to achieve accredited status. The current standards do not adequately regulate to create the support and opportunities that new mediators require to achieve accreditation; nor do they provide a mechanism for mediators to draw on the wealth of experience within the profession by the apprenticeship route of observation and co-working, leaving new mediators to simply re-learn these from their own mistakes. The PPC The PPC is a lynchpin of a new mediator’s development post training. This role requires the PPC to be both supportive and challenging, and to be readily available to assist the consultee when he or she needs advice or timely completion or checking of paperwork. The PPC also needs a good understanding of the requirements of FMCA, to help the mediator work towards its achievement in the given timeframe. In the past, providing opportunities for practice was also seen to be the responsibility of the PPC. Often, however, PPCs do not have a sufficient caseload themselves to offer this facility to all of their consultees. In addition, some PPCs prefer to mediate alone, not wishing to allow their less experienced consultees to learn with their clients or spend time afterwards reflecting on the consultee’s performance. These obstacles have led some PPCs to refuse to support trainee mediators at all. Many others continue to support new mediators, but are oversubscribed and consequently have to turn new mediators away. New trainees joining the profession often find it difficult to find a PPC who is willing or able to take them on. It has also given rise to some very high rates being charged by some PPCs in a sellers’ market, again making it difficult for those with more limited means. The lack of availability of practice experience The paid, supported trainee positions of the past are now rare. Funding restrictions on the use of trainee co-workers in legally aided cases, together with the view that new mediators can be a financial burden rather than a developmental asset, have discouraged practices from offering placements. The benefits of taking on a trainee mediator often outweigh the costs. A new mediator can bring fresh ideas and energy to an established practice. Giving practice opportunities to new local mediators can also make good business sense, allowing established services to cherry pick the best new mediators who might otherwise become competitors.8 A pilot scheme set up by the author with the South East London Family Mediation Bureau in 2014 provided both a source of experience to a range of new 264

New approaches to gaining practice experience mediators and a source of fresh, tried and tested mediation talent going forward. This approach is being adopted by a number of practices and, in a more recent development, by national practice groups of mediators, often called mediation panels. Some practices have also spotted a commercial opportunity in the current shortage, making a profit from new mediators beyond the costs of offering support. However, as demand outstrips the availability of accredited mediators in some areas, practices may need to revisit the option of taking on trainee mediators and supporting them to accreditation on more reasonable terms. In the meantime, other creative ways are being found to bridge the training-accreditation gap.

New approaches to gaining practice experience Back to the future? There is some debate as to where responsibility lies for ensuring that the practice experience gap is bridged. A  widely held view is that this should be the responsibility of the training providers, as their profits are made by providing the initial training for new mediators. They do not, however, have any control over the availability of sources of practice post training. The best they can do is to signpost trainees to potential practice opportunities and campaign for more of those to be made available. Concerns over lack of opportunities led to a more proactive approach by the author’s own training organisation. It has developed a package of posttraining support, rather than abandoning its trainees to their fate once their training course had ended. It has actively sought out and publicised existing placement opportunities and promoted the notion of shortterm placements as piloted in South East London. Finding it difficult to encourage more than a handful of services to adopt its pilot placement scheme, it has also developed a mentoring scheme to support individual new mediators to develop their own practices. Through this approach, entrepreneurial new mediators are supported to set up their own practice. Support includes starter packs of essential document templates, help and advice on networking with local referrers and practical help with advertising and websites. Key to this approach is the provision of mediation mentors – accredited experienced mediators, often but not necessarily PPCs, who can be brought in on early mediation cases generated by the trainee mediator to co-work with him or her. This approach has a number of advantages. The cost of the mentoring is covered by the fees paid by clients. Clients are receiving mediation from the trainee mediator supported by an experienced accredited mediator in the room, rather than simply practising on clients on their own. For this reason, client satisfaction and mediation success rates are likely to be higher. New mediators enjoy the benefit of learning on actual cases from an experienced practitioner, while establishing a reputation locally as a successful and professional mediation practice. This approach 265

Helping new mediators to navigate the route to artistry in many ways replicates the advantages of the supported placement in an established practice, allowing mediators to learn from practical experience and observe and draw on a range of styles and approaches. It provides them with an experienced practitioner to help them reflect on their practice and a safety net for them and their clients in challenging cases. It provides protection for both new and often vulnerable trainees and also their clients, who deserve the best support available at what is a very difficult time in their lives. This scheme shows promise, but to be more widely available it needs a ready source of mentors to support new mediators. Being an effective mentor mediator is a skill in itself, and ideally also requires training and support to enable mentors to strike the right balance between enabling new mediators to develop and become confident in their own style and ensuring that clients receive good-quality mediation. Mentor selection and training for PPCs, and also for experienced accredited mediators, is currently being developed by the author in an attempt to widen the availability and quality of this scheme. Being a mediation mentor could also be an excellent introductory step for experienced accredited mediators who are considering becoming PPCs. It could, in any event, provide a mechanism for the skills and experience built up in the mediation profession to be more successfully transferred to the next generation of new mediators. A final source of experience and support for new mediators comes from that area of family mediation which falls outside the narrow definition of ‘family mediation’ covered by the FMC. Family mediation providers offering mediation in intergenerational cases and public law, for example, often deal with very demanding cases which would test the skills of the most experienced accredited mediators. Many practitioners in this field are trained to a high standard and many have sought recognition either through the FMC or via independent standard-setting bodies such as the College of Mediators. A  wider recognition of the equivalent value and relevance of this type of mediation experience for family mediators would open up a rich source of practice opportunities. Many of the organisations working in these areas operate in the voluntary sector, providing a free service to a large number of clients. New mediators are often welcomed to work with experienced colleagues and while the work is unpaid, there is also no charge to the new mediator for supported mediation experiences on very challenging cases. The professional bodies and the FMC itself perhaps have more power to ensure that new mediators are better supported post training. This could include ensuring that all PPCs take on trainee mediators as a requirement of their continued registration. This would increase the number of available PPCs, making it easier for new mediators to find a PPC who is right for them and reducing the number of trainees that each PPC needs to take on. It would also increase the quality of support that all mediators receive from their PPCs by requiring all PPCs to keep abreast of developments in 266

New approaches to gaining practice experience training and practice standards and exposing them to the questions and challenges that a newly trained and curious mediator brings. The mentoring of new mediators could be recognised by professional bodies and the FMC as part of a mediator’s professional development. Mentoring experience could also form an entry requirement for more structured PPC training programmes formally assessed as meeting set standards for the training of this pivotal training and quality control role. Regular support for new mediators could also be organised by their professional bodies. Many new mediators naturally form support groups, often setting up WhatsApp or email groups to stay in touch with fellow course colleagues post training. While most professional bodies hold annual events for members, more regular support groups – such as the College of Mediators’ online community of practice meetings – may be of particular benefit to more isolated new mediators. The gap between training and accreditation can be bridged only by practice on actual cases. Achieving FMCA requires the submission of three or four completed cases and in reality the attempted completion of many more. Real cases are a vital source of experience both in practice and in understanding the needs of clients. This experience complements and interacts with skills and theory learned during and after mediation training. Mediating for real, when supported by reflective practice, also provides the material for the mediator’s growing self-awareness as an effective practitioner. This essential part of a mediator’s professional development requires more definition and support than it currently receives. Without this, standards set for training are of little practical relevance and the target of competence set by FMCA becomes hard to achieve – not due to its high standards, but simply due to lack of support and opportunity. The future of mediation training – towards a more holistic approach The journey from novice to competent family mediator and beyond towards artistry or craftsmanship is currently disjointed and difficult. Standards are in place at certain points and for certain types of family mediation. Other areas remain largely unregulated and unsupported. Much of the current difficulties can be traced back to lack of government leadership in requiring the proper regulation of the mediation profession and unhelpful tribalism among national professional bodies, which have sometimes placed their commercial interests above the best interests of the mediation profession and the public, including those who wish to train to join the profession. It is difficult to see a clear way forward from where we currently stand. What may be needed is for us to go back to first principles with regard to what we mean by family mediation and the core skills and knowledge that any family mediator will need, irrespective of the area of family dispute. 267

Helping new mediators to navigate the route to artistry From there, we can identify what specific skills, knowledge and experience a family mediator would need to work in a specific area of family dispute, be it separation and divorce, intergenerational family disputes or disputes between families and the state. A  clear progression route is needed for these specialisms, from training to supported practice, independent practice and accreditation and beyond; and resources need to be put in place to facilitate this progression. Recruitment, training and post-training support into practice must be designed to encourage mediators from a range of backgrounds and enable them to draw on training, experience, theory and a growing knowledge of themselves and the needs of their clients. Reflective practice should be a skill first taught in foundation training and should permeate all aspects of supervision and professional development. Finally, new mediators should be welcomed into an inclusive, supportive professional community which sees new mediators as an asset rather than a burden. They are, after all, the future guardians and cultivators of the knowledge, skills and standards of best practice, developed over more than a quarter of a century of family mediation practice in the UK.

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Endnotes

Endnotes 1 Sources of academic papers on mediation in the UK are currently very limited, the College of Mediators’ Mediation Theory and Practice (Equinox Publishing Ltd) being currently the only peer-reviewed academic journal for mediation based in the UK. 2 The term ‘reflective practice’ was used by Schön in his book The Reflective Practitioner (1983). It describes a process of development and learning by reflecting on one’s practice both ‘in action’ and ‘on action’ and considering this in the light of one’s knowledge and practical and personal experience. McAlpine and Weston (2002) expanded on this by suggesting that one can also have reflection ‘for action’ where one plans future actions in the light of past experiences. 3 The five bodies that make up the FMC at time of writing are the College of Mediators, the Family Mediators Association, the Law Society, National Family Mediation and Resolution. 4 The Dreyfus model (Dreyfus and Dreyfus 1986) describes five levels of skill acquisition, from novice to expert. It is an attempt to systematise the cumulative impact of practice experience on performance. 5 In Scotland, a mediator is ‘accredited’ following a combination of distance learning, face-to-face skills training and service-based practice learning, which includes mentored co-mediation practice and supervision. Learning is evidenced through a combination of written work and assessed mediation practice. An estimated 250 hours of work is required over a period of 12 to 18 months. This is followed by a second stage, the Certificate in Family Mediation (Registered), which is a combination of service-based practice learning, distance learning, self-directed reading and continual professional development. Again, mediators evidence their learning through written work, mediation practice and a Registration Panel (Relationship Scotland website 2019). 6 In the 1990s National Family Mediation developed an early pioneering example of a professional selection procedure where a key component was personal aptitude for family mediation. This was devised with the help of a leading firm of consultant occupational psychologists. A specification of personal attributes was drawn up which would indicate the potential for effective practice of family mediation. These were analysed in terms of four main areas: intellectual, ethical and personal, interpersonal and motivational. It was considered a very effective recruitment process, but was ultimately too expensive to operate long term. 7 It was hoped that the introduction in 2014 of the mediation information and assessment meeting (MIAM), requiring those wishing to make an application to court for family matters to consider the suitability of mediation, would turn the tide of decreasing legally aided mediation uptake. By the end of 2018, the number of MIAMs was still only onethird of that pre-LASPO and mediated, legally aided outcomes were at half pre-LASPO levels (Ministry of Justice 2019). 8 In early 2014 the author wrote and disseminated a consultation paper on a proposed scheme to enable newly trained mediators to gain mediation and MIAM experience with established mediation practices. The scheme was a response to the growing difficulties that new mediators were facing in gaining enough practice experience to achieve accreditation. The author was also concerned about reports she had heard from her own mediation students of excessive sums being charged for sometimes poor-quality experiences of mediation. The proposed scheme aimed to provide good-quality supported short-term placements to enable new mediators to gain 10 hours of co-worked practice with experienced accredited family mediators to meet FMC criteria to practise and to enable them to gain confidence and hone their skills post training. The scheme suggested a range of ways that the cost of providing this service could be met, including reasonable payment to the mediation practice or payment in kind through utilising the other skills of many new mediators who were often very experienced in related areas such as counselling, benefits and financial matters or administration. The point of the paper was to highlight the value of new mediators as a resource to established practices rather than a threat. The scheme was taken up by the South East London Family Mediation Bureau and continues to this day. Other similar schemes have since emerged. Initial feedback from the pilot scheme was presented at the College of Mediators conference later that year (‘Standing out from the crowd’, College of Mediators conference 2014).

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References Barlow, A, Hunter, R, Smithson, J and Ewing, J (2017) Mapping Paths to Family Justice (London: Palgrave Macmillan). Bowling, D and Hoffman, D (2003) Bringing Peace Into the Room – How the Personal Qualities of the Mediator Impact on the Process of Conflict Resolution (San Francisco: Jossey-Bass). Bramwell, L (2010) ‘Regulating for Creativity and Diversity. ‘Can regulation and standard setting in mediation training and practice both protect the public interest and nurture creativity and diversity?’ MSc dissertation (London: University of London in collaboration with the Institute of Family Therapy). Brockbank, A, McGill, I and Beech, N (eds) (2002) Reflective Learning in Practice (Aldershot: Gower Publishing Limited). Cloke, K  (2007) ‘Let a Thousand Flowers Bloom. A  Holistic, Pluralistic and Eclectic Approach to Mediation’, Family Mediation Quarterly Vol 6 Issue 2 1–8. Dreyfus, H  and Dreyfus, S  (1986) Mind over Machine (New York: Free Press). Family Mediation Council (2014) ‘FMC Manual of Professional Standards and Self-Regulatory Framework’ September 2014. Accessed online at www.familymediationcouncil.org.uk/wp-content/uploads/2015/01/fmc_ standards_framework_manual.pdf on 17 November 2019. Family Mediation Council (2015) ‘The Family Mediation Council announces its strategy for professional self-regulation, a new system of accreditation and a public register of practising family mediators’, October 2015. Accessed online at www.familymediationcouncil.org.uk/2015/10/12/ fmc-and-professional-self-regulation/ on 17 November 2019. Family Mediation Council (2018) Newsletter November 2018. Accessed online at www.familymediationcouncil.org.uk/wp-content/uploads/2018/11/FMCNewsletter-November-2018.pdf on 17 November 2019. Family Mediation Council (2019a) ‘FMC Professional Practice Consultant Guidance to the (PPC) Code of Practice’, January 2019. Available online at www.familymediationcouncil.org.uk/wp-content/uploads/2019/01/PPCGuidance-v.1-January-2019.pdf on 17 November 2019. Family Mediation Council (2019b) ‘A  high-level summary of the quantitative responses to FMC and FMSB survey’, March 2019. Accessed online at www.familymediationcouncil.org.uk/wp-content/ uploads/2019/04/Accreditation-Survey-all-results2c-March-2019.pdf on 17 November 2019. 270

References Family Mediation Northern Ireland (2019) ‘Approved Foundation Training Programme – What you need to know’. Accessed online at www.familymediationni.org.uk/training/approved-foundation-trainingprogramme/ on 27 March 2019. Legal Aid Agency (2018) ‘Standard Civil Contract Family Mediation Specification’. Accessed online at https://assets.publishing.service. gov.uk/gover nment/uploads/system/uploads/attachment_data/ file/738524/2018_Standard_Civil_Contract_Family_Mediation_ Specification__August_2018_.pdf on 17 November 2019. Lang, MD and Taylor, A  (2000) The Making of a Mediator. Developing Artistry in Practice (San Francisco: Jossey-Bass). Law Society (2017) ‘Access denied? LASPO four years on: a Law Society review’, June 2017. Accessed online at www.lawsociety.org.uk/supportservices/research-trends/laspo-4-years-on/ on 27 March 2019. LeBaron, M  (2002) Bridging Troubled Waters (San Francisco: JosseyBass). Mayer, B (2004) Beyond Neutrality (Chichester: John Wiley and Sons). McAlpine, L and Weston, C (2002) ‘Reflection: Issues related to improving professors’ teaching and students learning’ in Hativa, N  and Goodyear, P  (eds) Teacher Thinking, Beliefs and Knowledge in Higher Education, pp59–78 (Dordrecht: Kluwer Academic Publishers). McEldowney, J (2012) Family Mediation in a Time of Change; FMC Review Final Report (London: FMC). Ministry of Justice (2011) ‘Family Justice Review Final Report’. November 2011 (London: Ministry of Justice, Department for Education and Welsh Government on behalf of the Family Justice Review Panel). Ministry of Justice (2019) ‘Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO)’ February 2019. Accessed online at https://assets.publishing.service. gov.uk/gover nment/uploads/system/uploads/attachment_data/ file/777038/post-implementation-review-of-part-1-of-laspo.pdf on 17 November 2019. Moore, CW  (2014) The Mediation Process (4th edn) (Chichester: John Wiley & Sons). Relationship Scotland (2019) ‘Train as a Family Mediator’. Accessed online at www.relationships-scotland.org.uk/about-us/training-and-cpd/ train-as-a-family-mediator on 27 March 2019. 271

Helping new mediators to navigate the route to artistry Roberts, M (2007) Developing the Craft of Mediation; Reflections on Theory and Practice (London: Jessica Kingsley Publishers). Roberts, M  (2010) ‘Quality standards for family mediation practice’, Family Law, Vol 40 661–6. Roberts, M  (2014) Mediation in Family Disputes: Principles of Practice (4th edn) (Farnham: Ashgate Publishing). Schön, D  (1983) The Reflective Practitioner; How Professionals Think in Action (New York: Basic Books). South, J  (2009) ‘Development of Commercial Mediators Skills Training in England and Wales’. Accessed online at www.mediate.com/articles/ southJ1.cfm?nl=207 on 27 March 2019. Whitehouse, M (2017) ‘Regulating civil mediation in England and wales: towards a “winwin” outcome’, Mediation Theory and Practice Vol 2 Issue 1 2017 69–83 (Sheffield: Equinox Publishing). Accessed online at https:// doi.org/10.1558/mtp.31937 on 17 November 2019. Wilson, B (2004) ‘Towards a Theoretical Model of Professional Practice Consultancy’ Mediation in Practice’ (Bristol: UK  College of Family Mediators) 14.

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Chapter 14

Teaching family mediation in higher education– what an academic family mediation course could look like Katherine Stylianou

Introduction Academic teaching of family mediation can present some challenges – not least of which is the multi-disciplinary nature of the subject, which creates a diverse theoretical base. The evolutionary development of the profession of family mediation has also led to historic tensions, which can influence teaching. These tensions can create challenges to decisions about the content and teaching methods of a family mediation course. This chapter attempts to determine what the indicative content of a family mediation course might look like and how this could be distinct from training. It can only be indicative, because the extent of possible material to be studied seems non-exhaustive, given the wealth of disciplines that have relevance to the field of mediation in general, and then specifically to family mediation. For example, social anthropology, sociology, psychology, political sciences, international relations and peace studies all have relevance to the field of mediation (Severson 1988). However, in the author’s experience, the common academic departments for housing mediation modules in the UK seem to be law, psychology and social work. The parent discipline within which a mediation course is taught can shape its emphasis, context and content. For example, in the field of law, the focal point can often be the courts. The emphasis can be on how family mediation performs a function for the state in diverting disputes from the legal process, saving the state the costs of formal justice that is expensively dispensed in courts. In psychology or social science departments, the emphasis may be on conflict theory, psychological states of conflict and how mediation can be a way of managing these states, not necessarily with the goal of resolving a dispute. There may then be an emphasis on therapeutic models of family mediation that deal with management and resolution of conflict. This chapter does not seek to conclude as to what is the best ‘home’ for a course in family mediation in higher education, but rather to suggest what any course could have as its content – irrespective of the discipline of the academic department. 273

Teaching family mediation in higher education For the purposes of this chapter, it is useful to distinguish early on between the terms ‘conflict’ and ‘dispute’. A ‘dispute’ refers to the voicing of a specific grievance that is met with opposition by the person who is regarded as at fault (Roberts, S  1983). ‘Conflict’ has been defined as clashes arising from opposition (Roberts, M  2014). There can be many sources of conflict. Interesting and extensive studies of the challenges and difficulties of resolving conflict have been conducted in the fields of international relations and peace studies (Berkovitch 2000). In a family context, the disputes that arise often concern arrangements for the children and the financial division of family assets as a result of separation of the parents. The sources of conflict leading to separation can derive from different many sources, such as infidelity. Disputes around children’s arrangements and finances may arise because the source of conflict has caused the parents to separate. Family mediation usually addresses the disputes, but not the underlying conflict. There are, of course, other questions about the design of a course that relate not just to discipline, but also to the level of the course. Whether the course is an undergraduate module within a programme of study in an academic discipline or a postgraduate course dedicated to family mediation within an academic department will shape the content and the depth to which topics are studied. These factors will also determine the learning outcomes of a family mediation course and in turn will affect the teaching, learning and assessment modes of those outcomes. The way that a module or programme of study is shaped in terms of its content and focus can also be determined by the demand that the academic course have relevance with regard to factors such as employability, corporate plans and university mission statements.1

History and current relevance of a higher education course in family mediation The historical background to family mediation and its development in the UK parallels the rationale and ensuing pressures faced by the emergence of divorce mediation in the US. This has its tensions, which in turn are reflected in the empirical and theoretical research. Some of these tensions stem from professional and disciplinary perceptions of the ‘ownership’ of the practice of family mediation. Although mediation has its roots in many different contexts and cultures (Gulliver 1977), the family mediation context was developed from different professional practices within family justice in the UK. One example was divorce court welfare officers (who performed a similar role to that currently played by social workers in the Children and Family Court Advisory and Support Service), overseen by the Probation Service. For many years the in-court work done by social workers in this field was labelled as family conciliation/mediation. However, the major difference was that the purpose of this work was, and still is, to provide recommendations to judges to assist in their decision making. As in the US, professionals who were involved in the early 274

History and current relevance of a higher education course in family mediation shaping of family mediation were lawyers and family therapists, who wanted to spare families and children the pain of settling disputes arising from divorce and separation through protracted court battles. The effect of conflict on children and this rationale for lawyers and social workers in finding another way to resolve disputes is a good starting point for study on a family mediation course. Studies, funded by the Rowntree Foundation, emphasised significant differences in children of families whose parents had experienced high conflict while making decisions about children and finances arising from divorce and separation (Bream and Buchanan 2003). Extensive research into the impact of conflict on children has also been conducted in the US (Cummings and Davies 1994). Similarly, Michael’s work on Children in the Middle discusses the effect of conflict on children during the divorce process (Michael 1985). An early wave of empirical research in the 1980s and 1990s in the US and UK (discussed in further detail later) showed that mediation did help parties going through separation and divorce to resolve disputes and reduce conflict. This made family mediation in the UK  very relevant – particularly after the 1989 Children Act was passed (which specifies that no court order should be made unless necessary where children’s arrangements are concerned). Although the history has contributed to the enrichment of the development of the field of family mediation, it has also led to territorial assumptions of what constitutes professional competence and in turn has led to competitive approaches to both training and regulation. However, two important breakthroughs have emerged over the last two decades. First, an overarching regulatory body – the UK  College of Family Mediators (UKCFM), now the College of Mediators (CoM) – was established in the late 1996, which brought together all the training organisations that represented the different professional backgrounds. The purpose and function of the UKCFM was to separate the functions of standard setting and regulation of family mediation from the provision and delivery of services and training, thereby avoiding a conflict of interest. However, the training organisations broke away to form the Family Mediation Council (FMC) in 2007. The fundamental difference between the FMC and the CoM is that the CoM is the only body that does not have a conflict of the functions of both setting standards for practice and providing services and training. The breakthrough in 2015 was that, on the insistence of the government, the FMC set up the Family Mediation Standards Board in order to establish the independent function of standard setting and regulation. This came about because of legal changes (Children and Families Act 2014) to the process of divorce, where family mediators became the gatekeepers for potential litigants seeking to access the courts to resolve their disputes. All parties wishing to access the courts need to see a family mediator to hear about all options and to assess whether the parties, the dispute and all circumstances are suitable for mediation. In justifying the need for the existence of such an academic course, this is a good place to start with a rationale. 275

Teaching family mediation in higher education

Indicative content Theoretical sources for a family mediation course A  core part of the course could involve a look at the different dispute resolution processes and some of the concerns about different forms of alternative dispute resolution (ADR), lumped together by writers as ‘informal justice’. Negotiation and mediation theory are important sources for understanding family mediation, as is conflict resolution theory. These sources can then lead on to an exploration of the nature of family mediation, its principles and specific features. Dispute resolution processes and informal justice concerns Dispute resolution theory and negotiation theory, as mentioned earlier, come from a range of disciplines. Given the likely legal consequences of relationship breakdown and possible ensuing disputes relating to finances and children, the different processes used in dispute resolution – including courts and the legal process – would need to be explored. Understanding the differences between the various processes – including the difference between negotiation, mediation and adjudication – can be helpful in identifying the boundaries between them and in determining how third parties intervene, giving another layer of understanding to mediation generally. Gulliver (1979), in discussing mediators, describes some crucial differences between negotiation and adjudication, the central point being with whom the decision-making power rests. Black and Baumgartner (1983) have used this work to expand on a typology of third-party intervention, which is helpful in exploring the roles that third parties play in the settlement of disputes. The body of work by Gulliver helps to identify the process of mediation as one which follows the negotiation process and has a function in restoring negotiations. The mediator is therefore different from a third party who has any decisionmaking authority. Additionally, understanding how disputes are layered, as discussed by Felstiner, Abel and Sarat, also provides insight into how disputes can be transformed by family justice professionals in order to enter the arena of civil litigation and therefore formal adjudication (Felstiner, Abel and Sarat 1981). They observe that disputes have many layers, starting with an injurious experience that must first be experienced as injurious and then voiced. If the voicing or grievance is not met with a satisfactory response, it becomes a claim, which if not satisfied becomes a dispute. What happens to a dispute then depends on whether it is taken into the legal arena. It is then transformed by lawyers into the language of a legal dispute, which is positional: applicant and respondent, both arguing their positions so that they can receive a decision and remedy from the judge. This is also the case in arbitration and tribunals, where similar safeguards need to be used to those in other processes whereby the third party has 276

Indicative content a decision-making role. Within any process where a third party has the authority to make decisions, due process is necessary to enable that third party to make a rational and therefore objectively fair decision. Fuller’s work (Fuller and Winston 1978) examines the kinds of disputes that can be exacerbated by adjudication. He discusses polycentric disputes that are multi-layered (like a cobweb of connectivity). An adjudicated decision will affect many people other than the parties themselves. For example, family disputes are polycentric in their nature, as community, children, grandparents, new siblings and new partners are all affected by decisions of the court. Fuller argues that an adjudicated decision often leads to further conflict in these types of disputes. Galanter (1983) explores the kinds of cases that survive the many exit points from the civil litigation process and reach formal adjudication (see Diagram 1), based on the work of Felstiner, Abel and Sarat mentioned earlier. This is useful in helping students to understand where and when family mediation can be used to resolve disputes, and where it can be more challenging if a dispute has become transformed and entrenched in the language of legal positions. Trial

Withdrawal; Settlement; Dismissal for want of prosecution/abuse of process

Cases that survive the pyramid and reach adjudication: Cases involving public policy Points of law – or need for legal clarification Straightforward debt actions Cases requiring judicial declaration

Civil Litigation

Dispute Lump it or claim met

Withdrawal; Settlement

Claim

Grievance Lump it – Shrug it off

P I E

Lump it; Apology; Or other desired response

(Perceived Injurious Experience)

Diagram 1. K Stylianou summar y of Marc Galanter’s work

Some of the work done by these sociologists, anthropologists and legal theorists can also be important in identifying the dangers and limitations 277

Teaching family mediation in higher education of informal justice in general, which helps to identify the rationale for the boundaries and principles inherently needed in mediation (Stylianou 2015). Some of the dangers discussed in Abel’s work, called the Politics of Informal Justice (Abel 1982), highlight a number of important considerations that resonate with every family justice and civil justice reform. For example, Abel describes institutional self-interest and the perceived threats that professions experience from the emergence of informal justice. This can be seen from the history of regulation in the family mediation field, as discussed earlier and in other parts of this book. Abel observes that the unburdening of the courts onto informal justice is inherently dangerous, as these processes may lack the safeguards inherent in the process of formal justice and due process. This is the driver for having clear boundaries, training and regulation of mediation. Simon Roberts also discusses some of the dangers identified by Abel (Roberts  1986). For example, he observes that looking at mediation as a way of assisting the courts, as opposed to it being a minimal form of intervention with its own value, can compromise the safeguards of the process. A  minimal form of intervention is used, among other factors, because mediation seeks to clarify, not transform, a dispute. Using mediation and other forms of ADR to unburden the courts in order to alleviate the shortcomings of the formal justice system carries with it challenges that can lead to a more stressed and less effective, and therefore less safeguarded, process (Abel 1982). In family mediation, this has led to a shortage of accredited family mediators and a number of tensions relating to standards of competence and training (Stylianou 1998; 2015). Understanding, through dispute resolution theory, the function of adjudication and the inevitable development of rules – due process – to support third-party decision making can assist in understanding the rationale of the principles, boundaries and limits of mediation. The aim of teaching this is to provide students with additional understanding of, and justification for, the safeguards and principles of mediation, both in general and within the family mediation context.2 Negotiation and mediation theory In Gulliver’s work Disputes and Negotiations: A Cross-Cultural Perspective (1979), he explores the stages that negotiations go through. Through his research of different cultures, he identifies some commonalities in this regard. The mediation process likewise follows these stages of negotiation. What characterises negotiations is the ‘absence or presence of an authoritative third party decision maker’, and the fact that the ‘locus of decision-making’ is with the parties themselves. Palmer and Roberts (1988) have a very clear and interesting chapter on negotiation and mediation, featuring excerpts from Gulliver and other important contributors to the field. Their work is a good starting point for students to begin to explore negotiation theory and the breadth of decision-making processes. 278

Indicative content Students also need to see that negotiations can break down and that mediation can assist in their restoration. There are different negotiation strategies to be explored: mainly positional or competitive bargaining, which focuses on positions, and the alternative – principled/collaborative or problem-solving strategies, which is what mediation encourages.3 The latter focus on the interests and needs of the parties. Negotiation strategies can help to explain some of the factors that cause negotiations to break down – particularly if a dispute has been transformed by the legal process, which (as mentioned previously) can only focus on the positions giving parties rights in law that enable a judge to decide for them. These are not the only way to explain blocks to negotiation, particularly in family mediation; additional factors that contribute to negotiation breakdown will be discussed later in this chapter and are important for students to understand. In family mediation, the positions may concern how much time the children spend with each parent and where. The positions may be numerical in nature: days counted by each party, so that they feel their positions are equal. However, the needs of the parties may be dictated by other factors – such as work, children’s activities and children’s needs – which may necessitate a unique outcome. Time pressures, the complexity of the necessary arrangements, impaired relationships, poor communication and different parenting styles all contribute to the difficulties in getting through negotiations. In family mediation, of course, the dynamic of the separation process and the underlying emotional conflict that causes parties to behave positionally can be the biggest blocks to negotiation. However, positional bargaining carries risks, mainly related to no outcome or a breakdown in future relationships (parenting relationships in the context of family disputes). It is important, therefore, to also understand the psychological stages of separation and grief.4 Conflict theory and conflict management within family mediation Bush and Folger (Noce, Bush and Folger 2002), once again, provide some interesting insights into conflict management and how conflict theory is woven into mediation. In The Promise of Mediation (Bush and Folger 2004) they discuss three different models that are shared in the mediation field: problem solving, harmonising and transformative. Each model reflects its own assumptions and shared beliefs of the world. Bush and Folger propose that mediators choose a framework based on their own view of the world or ideology. They go on to focus on their own transformative model of managing conflict. Interesting work has also been done by compassionate-focused therapists (Gilbert 2010), in relation to the different responses to stressful situations. A key response to conflict is ‘fight or flight’: the interaction between this ‘threat’ drive and the evolved human brain, which is all about imagination, can hinder clear thinking. Gilbert has shown how compassion and 279

Teaching family mediation in higher education empathy calm the mind and allow people to think differently. The work of compassionate-focused therapists has resonance with family mediators, dealing as they do with people who are highly stressed by the conflict that has led to separation and by disputes over children and finances. Family mediators must understand empathy – both its value and its pitfalls in the maintenance of perceived impartiality and balance. Discussions of mediation skills at this point can be very useful; as can discussion of the differences between therapeutic interventions and a minimal form of intervention (Roberts, S  1986), such as mediation. This has also been examined by Noce (1999), who likewise sees the value of empathy in the management of conflict. From this perspective, family mediation can have a conflict management value: while it gives parties the space to express the emotional aspects of the conflict, it also enables them, through the mediator, to do so with validity and empathy. Emotions in an adjudication are irrelevant; they are not seen as evidence of anything. However, this is because decision making is based on principles that necessitate an exploration of the past in order to decide whether a boundary has been breached. The use of evidence to prove this breach is what makes adjudication rational. In mediation, the focus is on the future; as in any negotiation, this is where the common ground and option possibilities can be found. Emotion and conflict are very useful in mediation, as they disclose very important information for negotiation, which in turn clarifies the needs of the parties. Relating family mediation to conflict theory and conflict management can help students to evaluate and interpret the empirical and practicebased literature on family mediation, which will be discussed later in this chapter. The mediator’s acknowledgement of feelings gives the parties the empathy that they need to calm their minds and proceed with decision making. Understanding this theoretically is helpful in then understanding why certain skills are used at certain times (Emery 1994).5 This can be woven into the rationale for the boundaries and principles of mediation (Stylianou 2015)., Some key ideas have been put forward by writers such as Duckworth (2012) about what often leads to conflict – ‘pinch crunch’ moments. After exploring these sources of impasse6 and the stages of conflict, students can then begin to understand the function, form and limits of mediation in family disputes. Once this scene is set, the rationale for mediation principles and its boundaries will make further sense. The nature, principles and boundaries of family mediation As discussed by Gulliver (1979), the key to understanding the central principle of mediation is the fact that a mediator has no power to impose an outcome. This can then usefully show that many ADR professionals performing settlement roles are still adjudicatory, even though they do not formally make judgments in a formal court. They are still decision makers 280

Indicative content and therefore have a greater degree of authoritative intervention than mediators. For example, in the family context, the other ADR professionals are those who offer early neutral evaluation/mini-trials/executive tribunals and family law arbitrators. These professionals are decision makers, albeit they may be asked to decide on only one point of contention. The mediator, as a non-decision-making third party, has a role that needs to be supported by principles of impartiality, voluntary participation of the parties, confidentiality and legal privilege. These principles protect both the disputants’ rights to adjudication and the integrity of their negotiations. Where the parties make their own decisions, this shifts the focus away from the third party and what he or she does, and towards the disputants themselves. The third party is there to enable communication between the parties, so that information is exchanged between them. Only with the flow of communication and information can negotiation and solutions be found. This is the essence of the role of the mediator. Anything further, Simon Roberts (1986) argues, blurs the boundaries with adjudication/ advice/evaluation. In order to move disputing parties forward through a negotiation, the focus of a mediation is on what they will need in the future. Mediators use their skills to work through the following stages of negotiation: engaging the parties; identifying issues; exploring issues; creating options; developing options; and securing agreement. The empirical research, more of which will be discussed below, was summarised by Joan Kelly in her 1996 work, A Decade of Divorce Mediation Research. The research, Kelly surmises, bears out the effectiveness of the mediation process in disputes arising from separation and divorce. In general, it was the observation of these principles and boundaries that the research showed yielded the best outcomes, subjectively for the participants. The studies showed that, because adjudication in family disputes dictates a winner and a loser of a position, disputants in the family context prefer to resolve their differences in a way that reduces the conflict rather than exacerbating it, as happens through the courts. It is important to note also that any negotiations that take place after the parties have had their dispute transformed by lawyers into legal positions in family law will be positional in nature (Felstiner, Abe and Sarat 1981). This is necessary so that a lawyer can represent the client’s interests in law and represent him or her before a judge to establish who is right or wrong. The principles and boundaries can be taught with reference to the central purpose of mediation described by Gulliver, which is to put the decision-making power in the hands of the parties. Roleplay exercises can be set for students to understand the experience of a third party who is allowed only to listen, ask open questions and summarise what the parties say (active listening). If students are taught with reference to this rationale, then the principles make sense and diversion therefrom will be regarded as unethical and unsafe. There are four main characteristics of 281

Teaching family mediation in higher education mediation, which will be briefly touched on below (McCrory 1981). These characteristics or principles stem, as previously mentioned, from the fact that mediation is a negotiated agreement with the assistance of a third party (mediator) who has no authority to make decisions for the parties. For this reason, a mediated outcome is not legally binding, because it has not been made through formal judicial decision making of the court. First, mediation is confidential, so that the parties feel free to exchange information without fear of how it will be used outside of the negotiations. Information exchange is essential for the progress of negotiations. It is in the public interest that certain professional relationships are confidential in order to maintain the effectiveness of those relationships. Mediator/ client is one such relationship. The negotiations in mediation are also said to be without prejudice. This refers to negotiations that are in the shadow of the law. This principle ensures that parties are not prejudiced by anything that they say in negotiation should they need to go to court to have their dispute resolved. This preserves disputants’ right to have their rights vindicated in a formal court. Students can go on to explore the exceptions to confidentiality and privilege – safeguarding, child protection, proceeds of crime and financial disclosure in divorce settlements. Second, the voluntary nature of mediation ensures that the negotiations are consensual and that the parties are genuinely making their own decisions. There are some interesting ongoing debates around this issue in family mediation and students can find material to examine this from all angles. For example, how can the state save money through mediation if it is only ever a voluntary process? On the other hand, how can compulsion be used in a negotiation process which relies on consensus for agreement? To what extent does compulsion to mediate breach rules of freedom of contract? Are there human rights issues in compulsory mediation, which relate to denial of the opportunity to have rights vindicated in a formal court? Does compulsion defeat the purpose of mediated outcomes that rely on subjective approval of the outcome in order to be effective? Third, mediators do not need to take sides, because they are not decision makers. They are therefore impartial. Impartiality is about the mediator maintaining a balance or even-handedness between the parties (Roberts, M 2014). This requires the mediator to remain sufficiently distant from the dispute, in not having a stake in the outcome, while also being sufficiently interested in what all parties have to say (Simmel 1908). Impartiality is different from neutrality, which does not consider the human characteristics and psychology of mediators and does not allow for the need to balance power between the parties to ensure equal participation (Roberts, M 2014). Students can grapple with interesting questions within this area. For example, how can mediation skills assist a mediator to resist the urge to push parties to a solution? And how can evaluative or directive mediation styles avoid a compromise of this principle of impartiality? 282

Indicative content Finally, mediation is said to be flexible. This refers not to flexible boundaries or principles, but rather to how and where mediation can take place. For example, should a mediator have separate meetings – as described in the Bromley model (Roberts, M 2016) – before bringing the parties together? Would the parties be better served by the mediator shuttling between them (never bringing them face to face)? It is interesting to explore the potential benefits and pitfalls of separate meetings or shuttle mediation and whether or how this could affect impartiality or perceived non-bias of mediators by the parties. The challenge for any academic course is determining how best to facilitate and assist students to navigate the wealth of literature that exists, and to understand that there is a great deal that has been written and researched in the past. One of the values of an academic course in family mediation is to enable students to access the long and distinguished body of multi-disciplinary literature on mediation. All six FMC member organisations7 have ethics and standards of training and practice that adhere to the standards and codes of practice identified by the Family Mediation Standards Board. These codes reflect the above principles and ethics of the profession. As resources, the websites of the six member organisations and the FMC are helpful for students. Lawyer negotiations are distinct from the negotiation strategies encouraged by mediators. So distinct are they that the term ‘collaborative law’ has been coined in family disputes to allow lawyers to negotiate with each other in a less positional way. The process involves both parties and their collaborative lawyers using problem-solving approaches to negotiations, focusing on the interests and needs of their respective clients. However, collaborative lawyers cannot then go on to represent the same clients in court should the negotiations fail, as they will have been privy to privileged information that must remain confidential and cannot be used against the other party in court. At some stage, it is also important to explore the scope of family mediation. Students should explore wider ideas about what constitutes family. The identification of myths and commonly held assumptions about family makes for interesting discussion. This can then extend to asking questions about what constitutes a family dispute. How wide is this definition? Currently, only mediation in disputes arising from separation and divorce results in the regulation of mediators – except for the CoM, which recognises and sets standards for all mediation contexts. Many possible disputes can arise within a family where mediation would be useful – for example, disputes relating to inheritance and wills, or disputes where a family member’s needs are changing or where care options must be explored. These are often flashpoints for families, where high emotions can lead to a breakdown in communication and therefore negotiation. Deep-rooted family dynamics will often come to the fore in these situations and negotiation can sometimes feel impossible.8 283

Teaching family mediation in higher education Specific features associated with family disputes Issues of safety and power balancing in family mediation Any academic course will need to explore the limitations of family mediation. Whether mediation is suitable and safe for clients is now assessed before parties commence family mediation in a mediation information and assessment meeting (MIAM). The MIAM acts as an opportunity both to gather and to provide information, so that the parties can decide whether mediation is suitable and the mediator can assess whether the parties can participate equally and without negative repercussions outside the mediation – in particular, where domestic abuse or child protection issues are involved, which will be discussed a little further below. In family disputes, there are specific power imbalances that need to be spotted in the MIAM. The safeguards to mediation are the observance by the mediator of the principles and boundaries. If these boundaries are compromised because of a power imbalance that prevents a party from participating equally, then mediation cannot be said to be safe for the parties or the mediator. The impact of factors such as domestic abuse will affect this. Sources of power imbalance in family disputes Any academic course in family mediation should address issues of power imbalance that are particular to the family context. One source of power imbalance can be where the dynamic of the relationships involves domestic abuse. This could be of such a nature that mediation would be physically unsafe, or the process itself could become abusive. This is something that mediators must learn to screen for and discern through open questions. It is important to understand that it is the impact of any domestic abuse on an individual that will determine whether mediation is suitable; and that this must come from the party first and then becomes an assessment that the mediator must make. Once again, there is a rich vein of academic research and debate in this area. It is an important consideration in understanding the limitations of mediation and the consensual nature of negotiations (Stylianou 2011). Another source of power imbalance that should be covered by an academic course is where one party is still in the early stages of separation – the grief-loss cycle (Parkes 2013). At this early stage, one party may still be in shock after finding out that the other wants to end the relationship. This is a vulnerable position to be in, as this party will find it difficult to deal with some of the overwhelming feelings of loss and grief, and will likely be unable to think of the long term. In such situations, mediation may have to be paced slowly or it may not be the right time for mediation to take place. An important part of negotiating collaboratively is to identify sources of power. If this is too great in favour of one party, a decision is needed about whether mediation is 284

Indicative content appropriate. There has been a development in relation to the way that parties are screened for domestic abuse in family mediation. Like domestic abuse, child safety is non-negotiable (as it is plainly wrong to abuse adults and children, and therefore not something that can be bargained). Students should thus understand why mediation is not a process that can be used to resolve domestic abuse or deal with the safeguarding of children. This leads to interesting moral and ethical debates for students to explore in relation to the limitations of mediation in the context of family disputes and the other interventions that might be appropriate. There can also be discussion of how and whether mediation can be used in public law cases – what are the safeguards and challenges in this area? A  third source of power imbalance that can be discussed relates to knowledge of finances. Negotiations rely on the exchange of information in order to identify the options for possible settlement. In disputes arising from divorce and separation, where finances need to be sorted out, the most important part of mediation is to ensure that disclosure takes place. This will be the same in any other forum, including a decision-making forum. The imbalances of power relate to who has knowledge of the finances and whether all is being disclosed. Many questions arise in this regard around the appropriateness of mediation, moral and ethical dilemmas for mediators and understanding of legal principles, and whether this empowers mediators to act differently or whether this binds them to empower the parties to inform themselves. This also allows for interesting discussions about the difference between information giving and advice. What should mediators be doing ethically and within the rationale of this process? One aspect of this could be to discuss the legal consequences of non-disclosure and why privilege and confidentiality cannot apply to financial settlements in divorce (principles of freedom of contract). Consulting children Within the family mediation field, it is also important to consider how the voice of the child, over time, has become increasingly important with the United Nations Convention on the Rights of the Child.9 Here, important distinctions can be made between methods of accessing children’s views on future arrangements in mediation. Family mediators should always focus the discussions on the needs of the children and encourage discussions through which the parents themselves can access their children’s views. However, this can sometimes be fraught with difficulties, so mediators can directly consult with children as part of the process. This is now well regulated by the FMC and member organisations, which all have codes of practice about consulting with children, involving special training of mediators in order to be able to conduct these meetings separately with children. 285

Teaching family mediation in higher education For the purposes of an academic course, once again there is a rich body of literature to draw upon. In 2015, the Ministry of Justice published a report which made recommendations on giving children the opportunity to have a voice in dispute resolution processes resulting from their parents’ divorce or separation. Within this context, there were many debates and responses to the report that students can access and reflect upon. Research findings on family mediation In the first wave of research conducted in the 1990s in the US and UK, most studies were consumer and outcomes based. Taken together, this research – summarised by Joan Kelly in 1996 and a number of other academics and researchers – revealed a number of common themes: mediation clients appreciated being heard (Davies and Roberts 1988); their agreements brought relief; the agreements tended to last; clients preferred facilitative models of mediation, where they did not feel coerced into an arrangement; and children benefited from the reduction of conflict and the opportunity to be consulted (Garwood 1990). Mediation clients in the Newcastle University research conducted by Walker et al contributed to the following conclusions (Walker, McCarthy, Simpson and Colyon 1990): mediation was most effective when it was voluntary; mediation provided through independent services that were not linked to the legal process were more effective and best seen as an alternative way to resolve disputes; and mediation was most effective when it was client led and client focused, with the absence of imposed authority. This links in to other research (51 studies in total) reviewed by Benjamin and Irvine (1995), which found that although styles vary in family mediation, a flexible approach, responsive to clients’ interactions as they arise, proved most effective, encouraging productive exchanges and discouraging destructive conflict. This research also concluded that mediation was more helpful than litigation in helping couples to reduce conflict. Similarly, a study by Walton, Oliver and Griffin (1999) showed that family mediation in a small sample resulted in reduced stress for both parents and children. Beck and Sales’ (2000) research warned of the dangers of mandatory mediation and parties being rushed through processes without time to air concerns and identify spousal abuse. The difficulty that Noce, Bush and Folger (2002), and Kelly (1996), have identified with focusing purely on theory-free skills and techniques is that mediators may be unable to explain why and when an intervention works. They call this ‘blind faith in the how’. Historically, however, it has been challenging to pin down a theoretical framework for mediation. Noce, Bush and Folger (2002) give three reasons for this: mythology, imported theories and ‘skills and techniques that are presumed to be theory free’. They propose that mediators interact with their clients and make choices about the interventions they make based 286

Conclusion on their own theoretical frameworks about the social world and social activities. Exploration of the early empirical findings from the research undertaken in the US upon the emergence of divorce/family mediation would be useful. Included in the discussion could be the imported theories discussed by Noce, Bush and Folger (2002) – namely, negotiation and conflict theory. These imported theories help to explain the process and principles/boundaries, but do not explain the mythology of what, when and why mediators do what they do. This is often referred to the ‘black box’. Some mediators since the 1980s onwards have attempted to explore these intuitive responses.10 A study conducted by Robert Emery (1994) discussed the intuitive interventions of mediators where one or both parties displayed anger. He found that mediator interventions differed depending on whether one or both parties were displaying anger and the level of that anger. The difficulty with studies that explore the intuitive interventions of mediators is that it is difficult to hypothesise and have control samples. Bush and Folger (2004) do, however, discuss useful ideas in their work about models of mediation determining the ‘what’ and ‘why’, and conclude that this is more influenced by the style of the individual mediator. The consensus is nonetheless that further research is needed in order to develop more theory and test out some of the interventions that mediators intuitively use to manage the process.

Conclusion For the purposes of this chapter, it is proposed that the ideal programme of study would be a one-year full-time or two-year part-time master’s degree course in family mediation. There could be exit points for the award of a certificate after four modules and a diploma after six, with a thesis and dissertation for those choosing a master’s degree qualification. This, of course, would also depend on the institution’s credit system for each master’s level module of study. All programmes of study could have practical skills components woven into the course. For example, by understanding the process of negotiation and the stages of mediation, students could participate in roleplay negotiations and reflect on the stages they go through in order to get to agreement. This could enhance their understanding of the process and boundaries of mediation in general. Students could, optionally, take these skills further if they wished to pursue a qualification in mediation generically and then specifically in family mediation. There could therefore be a core element to the course and some optional elements. That said, however, the above indicative content could also be condensed in a module dedicated to family mediation that could be adapted to an undergraduate or postgraduate degree programme in many specialisms – for example, family law, dispute resolution or conflict studies. A module on family mediation that examines the above contents and issues creates 287

Teaching family mediation in higher education interesting opportunities for research. There is a rich and varied academic course to be had in the field of family mediation. Such a course could be both theoretical and practical, overlapping with skills training by introducing students to the skills involved in mediation, which can also be very useful in the management of conflict in general. It would have as its centre a rationale for the principles, boundaries and ethics of the mediation process and its relationship with other third-party processes.

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Endnotes

Endnotes 1 The author’s own experience of teaching mediation courses has been primarily within a law department; as a guest lecturer on a postgraduate diploma and MSc teaching alternative dispute resolution theory in a psychology department; and as a lecturer on an LLM course in dispute resolution teaching a short family mediation module. The courses the author is responsible for at the institution in which she is permanently based are Alternative Dispute Resolution and Mediation Skills. Both of these are optional modules on a law degree (LLB) and law master’s (LLM). The Alternative Dispute Resolution module involves the teaching of family mediation as an example of one of several contexts for mediation. Mediation is taught as an alternative to formal adjudication and as an alternative process to most other dispute resolution processes, which mostly have adjudicatory characteristics. The mediation module was developed as an integrated mediation theory and generic mediation skills course. The emphasis on skills awareness and (if students choose to train further) acquisition is a result of the focus on employability within higher education in general, but particularly within the department’s and institution’s mission statement and corporate planning. 2 Another useful piece of literature that helps to clarify the different roles played by third parties in any dispute is that of Black and Baumgartner’s work on a typology of thirdparty roles. They differentiate between support roles and settlement roles played by third parties in disputes. Support roles are classified in order of the degree of their partisan involvement – that is, how much support is given; the settlement roles are characterised by the degree of the third party’s level of authority to intervene. 3 Mackie (1991); Fisher and Ury (2011); Menkel-Meadow (1993). 4 Also, within the context of family mediation and conflict, the reasons for the breakdown can be seen from the separation process itself. 5 See also Emery, Matthews and Kitzman (1994). 6 For example, Moore (1986). 7 College of Mediators, Resolutions, National Family Mediation, ADR, Law Society, Family Mediators Association. 8 Many other topics within family mediation are interesting for students to explore. There is a wealth of writing among practitioners, researchers and academics in the general field of mediation and in the family mediation specialism. Such topics include the relationship between culture and mediation and the field of cross-cultural mediation and how this is relevant to family mediation, in both the narrow and wider sense. This appreciation of different cultural notions of identity, self and community can also be studied and discussed here, having been researched and written about in some depth. Another example of a topic for research is how and when to consult children during the mediation process. Questions here can be explored about the function of consulting children. Also, a distinction must be drawn between direct and indirect consultation, and the extent to which both can be useful in family mediation should be considered. Discussions can be had on how this can be kept safe and on the necessary boundaries for the professionals involved. Again, ethical considerations can be explored by students engaging in this area of research. Some recent debates have taken place in the form of the recent Ministry of Justice Report on the Voice of the Child, which heavily relied on the work of Australian researcher Julie Macintosh – albeit that the researchers themselves explained that their research and their practice were unique and should not be taken out of the context of the project in which they were engaged. Another point of debate is whether this report adequately consulted with children to inform the recommendations, as there was no voice of children who had been directly consulted in mediation in the focus groups. How does this affect the recommendations? Another interesting topic to explore is professional backgrounds and their impact on mediation. For example, with what assumptions do different professionals come to a dispute and conflict? Are there different professional approaches to family mediation and occupational assumptions that training and academic study should confront? It is important to challenge these professional assumptions in the study of family mediation, as this should further help students to understand the boundaries between the different professionals involved in family justice and relationship breakdown.

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Teaching family mediation in higher education Some member organisations, such as the CoM, allow students to join at a reduced fee and thereby get access to their newsletters and journals. The CoM journal, Mediation Theory and Practice, is a useful learning resource for libraries, as it has regular pieces on practice and academic theoretical debate – not just in the family mediation context, but in all contexts. It therefore helps to orientate students in the mediation field, which is determined not by professional background, but rather by distinct and specific mediation discussion. 9  1990. 10 For example, mediators such as John Haynes videoed case studies. He would unpick what and why interventions were made and how they helped move clients through the process. He would use this as a training tool.

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References

References Abel, RL (1982) ‘The Contradictions of Informal Justice’ in Abel, RL (ed) The Politics of Informal Justice, Volume 1: The American Experience (New York and London: Academic Press). Beck, CJA and Sales, BD  (2000) ‘A  Critical Reappraisal of Divorce Mediation Research and Policy’, Psychology, Public Policy and Law Vol 6 Issue 4 989–1056. Benjamin, M  and Irving, HH  (1995) ‘Research in Family Mediation’, Mediation Quarterly Vol 13 Issue 1 53–82. Bercovitch, J and Houston, A (2000) ‘Why do They Do It Like This? An Analysis of the Factors Influencing Mediation Behaviour in International Conflicts’, Journal of Conflict Resolution, Vol 44 Issue 2 170–202. Black, D and Baumgartner, MP (1983) ‘Toward a Theory of a Third Party’, in Boyum, KO and Mather, L (eds) (2015) Empirical Theories About Courts (New Orleans: Quid Pro Books). Bream, V  and Buchanan, A  (2003) ‘Distress Among Children Whose Separated or Divorced Parents Cannot Agree arrangements for them’, British Journal of Social Work, Vol 33 Issue 2 227–38. Bush, RAB and Folger, JP  (2004) The Promise of Mediation: The Transformative Approach to Conflict (San Francisco: Jossey-Bass). Cummings, EM and Davies, P (1994) Children and Marital Conflict: The impact of family disputes and resolution (New York: Guildford). Davies, G and Roberts, M (1988) Access to Agreement: A Consumer Study of Mediation in Family Disputes (Milton Keynes: Open University Press). Duckworth, V (2012) Understanding Behaviour (New York: McGraw-Hill Education). Emery, RE  (1994) Renegotiating Family Relationships: Divorce, Child Custody and Mediation (New York: Guildford Press). Emery, RE, Matthews, SG and Kitzmann, KM  (1994) ‘Child Custody Mediation and Litigation: Parents’ Satisfaction and Functioning One Year After Settlement’, Journal of Consulting and Clinical Psychology, Vol 62 Issue 1 124–29. Felstiner, WLF, Abel, R  and Sarat, A  (1980–1981) ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming….’, Law and Society Review, Vol 15 Issue 3 631–54. Fisher, R, Ury, W and Patton, B (2011) Getting to Yes: Negotiating Agreement without Giving In (New York: Penguin). 291

Teaching family mediation in higher education Fuller, LL and Winston, KI (1978) ‘The Forms and Limits of Adjudication’, Harvard Law Review, Vol 92 Issue 2 3553–409. Galanter, M (1983) ‘Reading the Landscape of Disputes: What We Know and Don’t Know (And Think We Know) About Our Allegedly Contentious And Litigious Society’, UCLA Law Review, Vol 31 Issue 4 4–71. Garwood, F (1990) ‘Children in Conciliation: The Experience of Involving Children in Conciliation’, Family Court Review, Vol 28 Issue 1 43–51. Gilbert, P  (2010) The Compassionate Mind (Oakland: New Harbinger Publications). Gulliver, PH (1977) ‘On Mediators’ in Hamnet, I (ed) Social Anthropology and Law (New York and London: Academic Press). Gulliver, PH (1979) Disputes and Negotiations: A Cross Cultural Perspective (New York and London: Academic Press). Gulliver, PH  (1988) ‘Anthropological Contributions to the Study of Negotiations’, Negotiation Journal, Vol 4, Issue 3 247–55. Gulliver, PH (1997) ‘Dispute Settlement Without Courts: The Ndendeuli of Southern Tanzania’ in Nader (ed) Law in Culture and Society (Berkeley: University of California Press). Haynes, J (1994) The Fundamentals of Family Mediation (New York: State Of New York University Publishers). Kelly, J (1996) ‘A Decade of Divorce Mediation Research’, Family Court Review, Vol 34 Issue 3 373–85. Kelly, J (2004) ‘Family Mediation Research: Is There Empirical Support for the Field?’ Conflict Resolution Quarterly, Vol 22 3–35. Mackie, K (1991) ‘Negotiation and Mediation: From Inelegant Haggling to Sleeping Giant’ in A Handbook of Dispute Resolution (London: Routledge in association with Sweet and Maxwell). McCrory, JP  (1981) ‘Environmental Mediation – Another Piece for the Puzzle’ Vermont Law Review Vol 6 Issue 1 49–84. McIntosh, J  (2007) ‘Child Inclusive Divorce Mediation: Report on Qualitative Research Study’, Conflict Resolution Quarterly, Vol 18 Issue 1 55–69. Menkel-Meadow, C (1993) ‘Lawyer Negotiations: Theories and Realities – What we Learn from Mediation’, Modern Law Review Vol 56 361–79. Michael, A (1985) Children in the Middle: Living Through Divorce (London: Tavistock). 292

References Ministry of Justice (2015) Voice of the Child Dispute Advisory Group: Executive Summary. Final Report, March (London: Ministry of Justice). Monney, A, Oliver, C and Smith, M (2009) Impact of Family Breakdown on Children’s Well-Being. Evidence Review, Thomas Coram Research Institute of Education, University of London, Department for Children, Schools and Families. Moore, CW (1986) The Mediation Process: Practical Strategies for Resolving Conflict (San Francisco: Jossey-Bass). Noce, DJD (1999) ‘Seeing Theory in Practice: An Analysis of Empathy in Mediation’, Negotiation Journal, Vol 15 Issue 3 271–301. Noce, DJD, Bush, RAB and Folger, JP (2002) ‘Clarifying the Theoretical Underpinnings of Mediation: Implications for Practice and Policy’, Pepperdine Dispute Resolution Law Journal, Vol 3 Issue 1 39–65. Palmer, M and Roberts, S (1998) Dispute Processes: ADR and the Primary Forms of Decision Making (London: Butterworths). Parkes, CM (2013) Love and Loss: The Roots of Grief and Its Complications (London and New York: Routledge). Roberts, M  (1992) ‘Systems or Selves? Some Ethical Issues in Family Mediation’, Mediation Quarterly, Vol 10 3–19. Roberts, M (2007) Developing the Craft of Mediation: Reflections on Theory and Practice (London and Philadelphia: Jessica Kingsley Publishers). Roberts, M (2014) a-z of mediation (London: Palgrave Macmillan). Roberts, M  (2016) ‘Interdisciplinary Influences on Family Mediation. A  Chronicle of Colonisation Foretold’, Mediation Theory and Practice, Vol 1 Issue 2 211–31. Roberts, S (1983) ‘The Study of Dispute: Anthropological Perspectives’ in Bossy, JA (ed), Disputes and Settlements: Law and Human Relations in the West (Cambridge: CUP). Roberts, S  (1986) ‘Towards a Minimal Form of Intervention’, Conflict Resolution Quarterly, Vol 1986 Issue 11 25–41. Shah-Kazemi, S  (2000) ‘Cross Cultural Mediation: A  Critical View of Culture in Family Disputes’, International Journal of Law, Policy and The Family, Vol 14 Issue 3 302–25. Simmel, G (1908) The Sociology of Georg Simmel trans Wolff, KH (1955) (New York: Free Press). 293

Teaching family mediation in higher education Severson, M (1998) ‘Teaching Mediation Theory and Skills in an Interdisciplinary Classroom’, British Journal of Social Work, Vol 34 Issue 2 185–94. Stylianou, K  (1998) ‘Tensions Between Family Mediation and the Legal System’, Family Law Journal, Vol 28 211–13. Stylianou, K  (2011) ‘Challenges for Family Mediation’, Family Law Journal, Vol 41 781–910. Stylianou, K  (2015) ‘Rationale for the Ethics and Integrity of a Family Mediator’, Family Law Journal, Vol 45 751–860. Walker, J, McCarthy, P, Simpson S and Colyon, J (1990) ‘Family Conciliation in England and Wales – The Way Forward?’, Family and Conciliation Courts Review, Vol 28 Issue 1 1–8. Walton, L, Oliver, C and Griffin, C (1999) ‘Divorce Mediation: the impact on the psychological well-being of children and parents’, Journal of Community and Applied Social Psychology, Vol 9 Issue 1 35–46. Whatling, T  (2012) Mediation Skills and Strategies: A  Practical Guide (London: Jessica Kingsley Publishers).

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Chapter 15

Exploring the scope of family mediation in England and Wales Andrew Sims

‘What are we But family?’ (Unattributed)

Introduction This chapter explores family mediation in the widest sense. It argues that the prevailing literature and practice of family mediation in England and Wales are mainly focused on a narrow conception of what constitutes a family dispute. Following an overview of the current state of family mediation from a practitioner’s perspective, this chapter focuses on the variety of disputes involving different family members which are increasingly being referred to family mediation services. These include adult sibling mediation; family inheritance mediation; public law/child care mediation; and two emerging specialist fields – medical mediation involving children and elder mediation. This chapter considers the implications of adopting this wider scope of family mediation from a practice, training and regulatory perspective, and argues for more academic research to be conducted into these broader family disputes. It concludes with an appeal to expand the vision of family mediation in England and Wales.

What constitutes family mediation in England and Wales? A discussion of what constitutes family mediation in England and Wales can encompass many perspectives: what was first conceived as family mediation; what currently encompasses family mediation; and what might be considered to fall under the umbrella of family mediation in the future. This question can also be considered from the point of view of formal definitions of family mediation within the profession; and from how the public or service users perceive family mediation. 295

Exploring the scope of family mediation in England and Wales To add to this complexity, determining the specific mediation field within which a given case falls can be quite problematic. Consider the scenario of a boardroom dispute between a brother and sister following a heated argument at work, leading to a breakdown in communication and a fractured relationship. How should this dispute be classified? As it occurred at work, does it qualify as a workplace dispute? If the disagreement concerned money or a business contact, should it be classified as a commercial dispute? What about a family feud in a family business – should this be treated as a family dispute? In the author’s view, the answers to these questions will largely depend on two aspects: the drivers of the dispute and the parties’ own attitudes towards the conflict. In the above scenario, as regards the former, are the drivers related to family dynamics or something else? As regards the latter, do the parties perceive their dispute as a form of sibling rivalry or can another narrative be applied? This second point – which is defined by the parties themselves – is particularly significant in the context of self-referrals, as these appear to be increasing across family mediation services in England and Wales.

The current understanding of family mediation in England and Wales The current understanding from inside the profession is that family mediation in England and Wales is centred on separating and divorcing couples. The current family mediation training programmes and textbooks strongly reinforce this view. The historical evolution of family mediation is encapsulated in the definition of its scope by the Family Mediation Council (FMC), the governing body in England and Wales. The scope of family mediation: ‘may cover any or all of the following matters: Options for maintaining or ending the marital or other relationship between the adult participants and the consequences of doing so; arrangements for dependent children – with whom they are to live; what contact they are to have with each parent and other family members; any other aspect of parental responsibility such as, but not exhaustively, schooling, holidays, religious education; the future of the family home and any other property or assets, including pensions, belonging to the adult participants; issues of child maintenance and spousal maintenance; issues relating to debts; how adjustments to these arrangements are to be decided upon in the future’ (FMC 2010: 4.1). According to the Legal Aid Agency (LAA), an executive agency of the UK  Ministry of Justice, the scope of family mediation in England and Wales includes ‘disputes relating to contact arrangements; residence 296

The evolution of family mediation in England and Wales and parental responsibility; child maintenance, property and finance’. However, ‘for a matter to fall within the scope of publicly funded mediation there must be a legal dispute present. There have to be family issues in dispute, and these disputes must be over legal issues, rights or duties, i.e. capable of giving rise to family proceedings’ (LAA 2018: 3.3). Further clarification regarding whether a matter is in scope of public funding for family mediation is offered: ‘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 legal aid. 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 as a Local Authority’ (LAA 2018: 3.5 and 3.6). This prescription of the scope of family mediation is best viewed in the context of the family justice system in England and Wales. It may be more a reflection of the need to keep family disputes out of the courts than of the full spectrum of mediation work involving families that is currently taking place. In contrast, the College of Mediators offers a much broader definition of family mediation, which encompasses ‘parent/grandparent disputes, disputes between parents and their grown-up (or growing-up) children, disputes between siblings and family business disputes’ (College of Mediators 2014).

The evolution of family mediation in England and Wales Family mediation services in England and Wales originated in the late 1970s, focusing exclusively on child-only cases arising from separation and divorce (Roberts 2015). The first family mediation agency, the Bristol Courts Family Conciliation Service, was set up in 1978, followed by the Bromley Mediation Bureau in 1979. Property and finance and all-issues mediation – covering property, financial and child matters – then followed in the mid-1980s, as it was acknowledged that when deciding on children’s futures post-separation, issues such as where families will live and how assets will be shared are inextricably linked to these decisions. According to a recent survey (FMC 2017: 5), all-issues mediation and property and finance cases (58 per cent) now outnumber child-only cases (42 per cent). This has proved to be a defining moment in the development of family mediation, in terms of opening up other types of family disputes. 297

Exploring the scope of family mediation in England and Wales Family mediation in England and Wales has diversified further over the last 20 years. Increasingly, separating and divorcing couples are using family mediation in a more expansive way: to establish (where appropriate) whether their relationship has irretrievably broken down; to determine how best to communicate effectively with each other; to help navigate the divorce process (including who should act as the petitioner and on what grounds); to reach agreement on the best way to inform their children about their separation; to reach agreement on the sharing of family possessions; to address issues of parental alienation; to decide on how best to implement court orders; and to help negotiate, where applicable, civil partnership, cohabitation and even pre-nuptial arrangements. The Family Mediation Survey (FMC  2017) provides a snapshot of the state of family mediation, albeit one based on a modest sample size. Many family mediators are starting to practise in other types of nonfamily mediation. Among 126 family mediators surveyed, over 45 per cent practise in community and workplace mediation, 30 per cent in commercial mediation and 20 per cent in employment mediation. Under the category ‘Family mediation not involving separating couples’, one-third of family mediators had conducted mediations in the previous six months concerning families, but not involving the breakdown of a couple’s relationship. About half of these mediators had conducted small numbers of mediations (ie, one or two), and a handful had conducted between five and ten mediations. Those cases most commonly concerned grandparents, but also included inheritance and sibling disputes.

Changing family structures in England and Wales Since family mediation was established in the 1970s and early 1980s, there have been significant changes to the formation of families in England and Wales. Most notably, the ‘modern family’ is now replacing the ‘nuclear family’ (Lake-Carroll 2018: 8). In response to the question, ‘What is family law?’, the former President of the Family Division of the High Court of England and Wales, Sir James Munby, posed another question: ‘What is the family?’ ‘In contemporary Britain, the family takes an almost infinite variety of forms … People live together as couples, married or not, and with partners who may not always be of the other sex. Children live in households where their parents may be married or unmarried. They may be brought up by a single parent, by two parents or even by three parents. Their parents may or may not be their natural parents. They may be children of parents with very different religious, ethnic or national backgrounds. They may be the children of polygamous marriages. Their siblings may 298

Where is family mediation in England and Wales at now? be only half-siblings or step-siblings. Some children are brought up by two parents of the same sex. Some children are conceived by artificial donor insemination. Some are the result of surrogacy arrangements’ (Munby 2018: 2). According to Munby, five factors are driving these ‘profound changes in family life’: extensive social and religious changes (as society becomes more secular, but also increasingly diverse in religious affiliation); a substantial increase in transnational families; a dwindling interest in marriage as an institution; a sea change in the legal recognition of, and social attitudes towards, same-sex unions; and significant advances in medical and reproductive science (Munby 2018: 2). Adults and children are now increasingly likely to be members of a range of family formations over time. The fastest-growing formations in England and Wales are co-habitant and step-family formations (Office for National Statistics 2018). In ‘reconstituted’ households’ and ‘blended’ families, new relationships and rules must be renegotiated, which can lead to increased tension and rivalry. This can place many family relationships under sustained pressure. It is clear from the above that family structures in England and Wales are now more intricate, multi-layered and fragmented than at any time before, and that the emotional and practical needs of family members in trying to manage their family lives are becoming more complex. One of the many consequences of this continuing evolution and diversification of family structures is that it is likely to increase the chances of misunderstanding and argument between family members.

Where is family mediation in England and Wales at now? Services and practitioners are increasingly receiving referrals for familyrelated matters outside of separation and divorce. To a certain extent, this is being driven by the market, through selfreferrals. This could be due to the widespread perception that ‘family mediation’ includes any permutation of family conflict within the family. These cases can be divided into five groups: intra-family conflict (not restricted to separation and divorce); conflict in the wider family (not just parents and children); family disputes in other social contexts (not just in a domestic setting); public law family mediation cases (not just private law cases); and hybrid family/civil cases. Intra-family disputes can encompass broader conflicts, feuds and disagreements which often arise within families. These can include a wide configuration of family situations, such as sibling disputes (whether between young or adult siblings); negotiating the choice of schooling for children or the funding of higher education for 299

Exploring the scope of family mediation in England and Wales teenagers; negotiating ‘house rules’ for adult children living at home; and negotiating adoption or post-adoption support (eg, facilitating communication between birth and adoptive parents or between the child and both sets of parents). The following scenario represents an example of a family dispute which was not a consequence of separation or divorce and draws upon a real case that I mediated: The case involved two couples in same-sex relationships, neither of which was separating. They sought mediation to help them reach agreement over the choice of schooling for their four-yearold son. The couples could not negotiate directly with one another about this and did not wish to engage lawyers to negotiate on their behalf. The case was self-referred. The first couple comprised Mr R, the biological father (a non-UK resident for whom English was not his first language), and his Asian partner, Mr H. The second couple comprised Ms F, the biological mother, and her partner, Ms L. They all shared parental responsibility for their son J, who had only ever known that he had two sets of parents. The couples lived at two separate addresses, several miles apart. Both couples used to be on amicable terms. However, soon after J was born, there was a breakdown in trust, to the extent that they found themselves incapable of making any key joint decisions about J. This was a high conflict case. The mediation resulted in a successful outcome over three sessions. Both couples reached a consensus over the choice of schooling for J, including two contingency options should their first and second choices not be possible. Intra-family disputes, not necessarily as a consequence of separation and divorce, often involve parents and teenagers who are finding it difficult to get on with each other (sometimes referred to as ‘intergenerational family mediation’). Common scenarios might include negotiating boundaries at home; negotiating chores or curfews; and resolving cultural differences or lifestyle clashes. In some cases, mediation is used to prevent homelessness among young persons, who may feel they are no longer able to live at home, who have been asked or forced to leave the family home by a parent or step-parent, or who have run away from local authority care. Mediation can also be used to explore whether a young person may be able to safely return to his or her place of care. Mediation is also increasingly being used to establish boundaries where an estranged family member wishes to be readmitted to the family after a period of absence or conflict. Family rifts such as these are quite common, whether between in-laws, cousins or siblings. A  recent survey (Stand 300

Adult sibling mediation Alone 2015) found that 19 per cent of adults in Britain – about 12 million people – are in families where at least two relatives are estranged. Causes of adult family estrangement (the breakdown of a supportive relationship between family members) can include mismatched expectations about family roles and relationships, a clash of personalities or values, emotional abuse, favouritism, a traumatic family event or issues relating to mental health problems (Stand Alone/University of Cambridge Centre for Family Research 2015: 11). Another non-separation and divorce scenario in which disputes can easily arise within the family concerns funeral arrangements, including decisions over who should be invited, what the arrangements should be and who should arrange them. Disputes that can arise between wider family members are not confined to grandparents seeking contact with grandchildren in a family conflict or following the death of a parent, but also aunts and uncles, step-parents and even godparents and godchildren. Many areas of dispute and conflict that fall outside the traditional domestic setting involve the family as a ‘system’, operating at the interface with other social ‘systems’, such as schools (eg, special educational needs mediation), hospitals (eg, medical mediation involving young children) and the prison system (eg, mediation when residents come out of prison and wish to reintegrate into the family).1 Family mediation is also used in international contexts – for example, in child abduction and international child relocation cases. Outside private family law cases, family mediation used to be considered unsuitable in child protection cases involving a public interest, but this changed in the 1990s. Mediation can be used to help resolve disputes between families and local authorities and/or care home providers; between families and foster parents; and between social workers and team leaders. Family mediation is also used for hybrid civil/family conflicts – for example, inheritance-related disputes involving wills and probate, and family business disputes over family trusts, estate planning, succession planning and sibling partnerships. These hybrid cases are well suited to mediation by dual-qualified family and civil/commercial mediators. The following sections of this chapter focus on the growing areas of sibling mediation, family inheritance-related mediation, public law/ specialist child care mediation and two emerging and significant areas – elder mediation and medical mediation involving children. Although these are presented as distinct specialisms, in practice, there is a relatively high degree of overlap between many of them.

Adult sibling mediation Eight out of ten family members in the UK grow up with brothers and sisters. According to a recent study, one-third of people describe their 301

Exploring the scope of family mediation in England and Wales relationship with their siblings as ‘not close’ by the time they reach middle age. Yet research also shows that after the age of 60, siblings increasingly value their relationships because these are often the only link with their past. Sibling relationships can be loving and enduring, but can also become fraught and turn into rivalries and feuds. Once a sibling relationship fractures, it can be difficult to restore, and sibling estrangements can persist for many years.2 Common scenarios might include siblings competing for parental love; competing against or judging each other; competing over whose children are the highest achieving or most loved by their grandparents; reuniting following a period of estrangement – either drifting apart or walking out after a heated argument; apologising for and forgiving past grievances; choosing partners that affect family dynamics; making different lifestyle choices, leading to resentment; seeking to control other siblings; or being labelled by parents, casting them in a specific role within their families. Common triggers can include the death of a parent, funeral arrangements, wills, decisions on what will happen to the family home and possessions, and the illness of a sibling. As with other types of family-related conflict and disputes, without some kind of mediation intervention, these typical tensions can escalate into a situation in which siblings find it easier to cease contact altogether. The following case which I  mediated is an example of a sibling dispute which was having a destructive impact on the wider family and was not the result of a separation or divorce. The siblings self-referred, as they were unable to negotiate directly: Two estranged adult sisters came to mediation to try to restore their sibling relationship. They had ceased all communications and their respective families, including the cousins, had also stopped seeing each other. The breakdown occurred due to a difficult family dynamic – in this case, a parent exhibiting narcissistic traits. Mediation helped the siblings to recognise that they were fighting the same common foe and that they had both improvised different ways of coping with their mother. It also allowed them to focus on the interests and needs of their young children and to agree practical boundaries for communication in the future. In a business setting, siblings can create synergy, but these relationships also have the potential to become destructive. In the context of a family business, it is often difficult to separate family values and business values. How siblings talk to each other in a family business can differ from how they would do so in a more formal business setting. Family dynamics can easily come into play, such as shifting into ‘elder sibling’ (‘big brother’ 302

Family inheritance mediation or ‘big sister’) mode. Decision making can take a long time or, in some extreme cases, can reach a state of paralysis. Attempting to have a focused discussion about succession planning within a family business is often challenging, as it may often reveal underlying tensions – arising from different priorities, trajectories, expectations, roles, aims and futures – which can lead to heated arguments. In all of the above scenarios, mediation can help to reconnect siblings or reset the sibling relationship. In a business context, it can also explore differing attitudes to risk and differing perceptions of fairness, including a sense of entitlement. For sibling disputes, in the author’s experience, two three-hour sessions may often be preferable to a series of 90-minute meetings or a one-day meeting. Also, it can be helpful to offer a follow-up meeting after a few weeks or months, to monitor and review (where necessary) the workability and durability of any mediated agreement.

Family inheritance mediation Family inheritance disputes, which have traditionally been addressed through commercial mediation and litigation, include disputes over wills and probate and family trusts. These disputes can be deeply personal, acrimonious and emotionally charged, often leading to difficult and unsuccessful direct negotiations between the parties. Many families are increasingly falling out over inheritance and succession disputes. According to research conducted by Independent Age, 36 per cent of family members are still in an argument over a loved one’s death (Independent Age 2018). In the author’s experience, family mediation services are increasingly receiving enquiries about business disputes within the family. Typically, these include new business ventures and property transactions between family members – either siblings or on an inter-generational basis. Over the last two decades, there has been a notable rise in second and third families, who may find it difficult to agree on financial matters. A common scenario might include middle-aged children who are worried about their inheritance after their mother or father has remarried. Rising property prices have exacerbated these anxieties. Mediation is also being used to help sort out disputes about gifts or loans from parents who wish to put money aside for their children, which the family courts are reluctant to address. Another increasing area of dispute relates to family trusts. In 2017, the number of such disputes coming before the High Court increased by 43 per cent on the previous year (Financial Times 2017) 303

Exploring the scope of family mediation in England and Wales Rivalry between family members can quickly intensify and dormant tensions can re-emerge when difficult relationships are referenced and aggravated by disputes over trusts. The range of potential claimants and beneficiaries also tends to increase in line with the widening of family relationships. Family trust disputes are not limited to claims against a fellow trustee. ‘Claims can encompass trust administration; claims by or against trustees; disputes between trustees; disputes between beneficiaries and variation of trusts or removing a trustee’ (Financial Times 2017). The family context of many trust disputes makes them especially suited to family mediation, which is often a more satisfactory method of resolution, especially where there may be a need to maintain an ongoing relationship between the trustees and beneficiaries. It also avoids putting a substantial proportion of the estate’s value at risk through the need to meet the ongoing cost of legal fees.

Public family law, including child care mediation Family mediators work at the interface between private systems of family decision making and public systems of law. The Practice Direction on Public Law Proceedings (Family Procedure Rules 2010, Part 12A) encourages the use of mediation in public law cases – for example, in adoption and care proceedings. Family mediation can be increasingly used in cases that have proven difficult to resolve through traditional social work intervention. Mediation can be used at the end of care proceedings to support the move of a child from foster care to a family member under special guardianship, encouraging a supportive relationship between prospective carers and parents. Referrals are also being made involving children on the ‘at risk’ register, relating to a need to improve contact arrangements or to restore communication between foster parents and parents. The Tavistock Clinic/National Family Mediation joint project on mediation in public law has designated a related area of practice as specialist child care mediation. This is a form of intervention that allows parents and social workers to reach agreed solutions designed to protect children, in situations where the child’s interests may have become marginalised in the conflict between the parent and the local authority.3 This research cautions against conceiving of specialist child care mediation as ‘just the extension of family mediation to a new area of conflict’ and identifies several distinguishing characteristics, including the direct interest of the state in the process and outcome; the complexity of the content; the multi-party nature of the participants; the nature and circumstances of the dispute (whether between social workers and team 304

Elder mediation leaders, between families and foster parents, or between families and local authorities); and potentially a range of power imbalances (including racial, social, institutional and cultural).

Elder mediation Although no universal definition of ‘elder mediation’ currently exists, it has been defined by the Elder Mediation International Network (EMIN) as: ‘a focused, respectful process – usually multi-party, multi-issue and intergenerational – whereby a trained Elder Mediator ensures, as much as possible, that all who need to be, are present in the mediation. The mediator facilitates discussions … and assists participants in exploring any issues or concerns. This form of mediation often involves many people related to the issues, such as family members, caregivers, organizations, agencies and a variety of service providers and networks’ (EMIN 2018, 3). Elder mediators facilitate family discussions about matters relating to safety, finances and capabilities, while keeping in mind the elder family member’s needs. Often, there are intergenerational dynamics at play, with several family members involved, in addition to third parties such as providers of health services, care and sheltered housing. Common applications of elder mediation in England and Wales include difficult decisions about residential care or future care options; family members’ roles and responsibilities; power of attorney appointment; estate planning; advanced care planning; new marriages; independence and selfdetermination versus safety concerns; medical decisions and treatments; and even end-of-life decisions. In many of the above circumstances, elder mediation can prevent escalation in family tensions, further division, estrangement or litigation. The need for elder mediation may be triggered when disputes arise due to life events or changes in circumstances of an older person, such as the death of a spouse; a decline in physical, mental or emotional health; or financial concerns. A typical scenario could include the ‘burn-out’ of the primary care-giving family member, in which difficult conversations between the care giver and the care receiver – and with other family members, including siblings – may need to take place. Referrals of disputes involving shared care or care arrangements among siblings are also on the increase. Often, those who do not provide primary care to an elderly relative may lack an understanding of the challenges of this role. 305

Exploring the scope of family mediation in England and Wales In another common scenario, an adult sibling makes occasional and sometimes fleeting visits to the parent. This can cause relationships among other sibling carers to deteriorate. While families may want to share their responsibilities and resources, it is critical that they do so in ways that are perceived as fair to all. Mediation can help to achieve this. Mediation can also be used when elderly parents are being discharged from hospital. Social services are often involved and the choice may be between the parent returning home with carers or moving into 24/7 care. There may be opportunities for mediation between the family, social services and the hospital. Elder mediation also plays an important role in reducing elder abuse and neglect. According to the World Health Organization (WHO), the global prevalence of elder abuse in recent years is estimated at 16 per cent (WHO 2017). One aspect of practice which appears common to most types of elder mediation is that often, much more preparation takes place in the premediation meetings. Either extended meetings or more than one pre-mediation meeting may be needed to fully prepare all parties for mediation. Elder mediation is a relatively new field of mediation, with a code of ethics, training and accreditation certification. The code refers to being ‘knowledgeable of, and sensitized to, ageing and age-related issues’ (EMIN 2018: 14). Elder mediators need to understand dementia and age-related diseases; know how to assess, manage and accommodate ‘capacity’ issues; recognise and respond to elder abuse (which is often unrecognised, unreported and hard to detect); deal with power dynamics affecting older people, with and without capacity; understand the ageing process and the dynamics of ageing, the nature and impact of bereavement, and the impact of ageism; and understand relevant legislation (eg, the Mental Capacity Act 2005), and the legal framework relating to power of attorney and guardianship issues. Despite a general lack of awareness, elder mediation is now starting to emerge in the UK and particularly in Ireland. It has the potential to have a beneficial impact on the health and social care sectors by optimising care and improving quality of life for elderly family members. This distinct and specialist area also has the greatest demand across the range of family mediation services, as it potentially affects every family in England and Wales.

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Medical mediation involving children

Medical mediation involving children At the opposite end of the age spectrum lies medical mediation involving babies and young children. In this specialist context, ‘medical mediation’ refers to the use of mediation to resolve disagreements between families and healthcare professionals over treatment approaches for seriously ill children, rather than medical negligence claims. Medical mediation involves hospitals and doctors working together with parents and families, with the help of a mediator, to reach agreement in the best interests of the child. Some of the challenges which underlie many of these disagreements include difficult diagnoses of more complex conditions; lack of clarity  regarding cures versus palliative interventions; increasing diversity of cultures, languages and religions; and the prevalence of social media. Medical mediation cases focus on managing conflict between parents, families, patients and health professionals, and sick young children. They tend to be highly emotive and morally complex. Typically, they deal with disagreements over treatment and breakdowns in communication and trust; but they can also help to align expectations between families and patients and those treating them. Entrenched disagreement can reach a point where there is a seeming impasse between families and hospital staff. Mediation can help both parties to clarify the key issues and try to reach a consensus, with the child’s interests as paramount. Even if the two sides cannot reach agreement, if mediation can help them to better understand each other’s concerns, then it may be considered a worthwhile intervention for all participants. Crucially, for parents, it ensures that their voices are listened to and understood. Mediation skills are also increasingly being used to help health professionals engage with patients and families and to help prevent and de-escalate conflict (Barclay 2017). Two notable recent cases (Charlie Gard and Alfie Evans) could have benefited from a medical mediation intervention.4 The cases share striking similarities: both were long, divisive and public legal battles between the respective parents and doctors, and both received widespread exposure on social media. This triggered significant public debate, polarising thinking and resulting in hostile comments towards both parents and medical staff. In terms of lessons learned, the avoidance of court proceedings – except as a last resort – would seem to be the most valuable. Court proceedings can be expensive, build further tension and create antagonism and division between the parties. Critically, the additional time required for proceedings can also impact on the ability to make timely, informed decisions about future treatment. 307

Exploring the scope of family mediation in England and Wales

Why are family mediators well equipped, and why is family mediation well suited, to deal with these broader family cases? Family disputes tend to be deeply personal in nature. In these highly emotive situations, mediation skills become especially important. Family mediators are well suited to mediate disputes relating to broader family matters, as they are more likely to be attuned to the unique dynamics, interrelationships, attachments and cultural sensitivities within families. Family mediators understand the need to respond appropriately and sensitively to expressions of raw emotion. They are used to ‘steering into’ the emotion, rather than suppressing, ignoring or avoiding it. Similarly, family mediators have an acute understanding of the impact of loss and grief. A  family dispute – for example, over the terms of a will – can be driven by similar feelings to those experienced in separation and divorce: bitterness, grief, rejection, loss, anger and resentment. Many of these forms of family-related disputes tend to be highly escalated by the time they come to mediation. Mediators must be skilled in managing this conflict. Family mediators tend to be experienced in engaging constructively, sensitively and responsibly with human diversity, and in dealing with different versions of the family beyond the traditional twoparent model. They also tend to be acutely aware of the possible influence of the wider community, and are accustomed to viewing and assessing families in conflict as part of a system, operating at the interface with other systems – be they social, cultural or religious. Most of the broader family cases discussed above will involve joint sessions and family mediators are trained in optimising the use of joint sessions (where it is safe to do so). Where the family-related conflict is deeply entrenched, a one-day meeting may not be appropriate; a series of meetings may allow family members to shift their positions over time. Family mediators appreciate the importance of pacing these mediation sessions. Parties will often need a period of reflection and contemplation before making a final decision. The family mediation model is flexible, allowing families (where necessary) to work through a complex array of issues. Family mediators are also familiar with signposting to counselling, therapeutic interventions and other sources of support and information. Family mediation services in England and Wales are quality assured and the training and accreditation in family mediation is the most rigorous in all fields of mediation. FMC accreditation is increasingly recognised and valued. Accredited family mediators also benefit from a highly effective system of supervision (professional practice consultancy), which does not currently exist in other mediation fields in England and Wales.5 308

What should happen now? It is important to make clear that the author is not suggesting that only accredited family mediators should mediate these broader family cases; merely that when selecting a mediator, family mediators should be seriously considered.

What should happen now? These broader family mediation cases are already being embraced by some family mediators in England and Wales. They are presenting fresh opportunities, but also fresh challenges. The practice, training and regulatory implications of adopting this wider scope of family mediation are examined below. Practice implications To confidently adopt these broader forms of family mediation, services and practitioners will need to ensure that they adopt a high degree of flexibility in their approach. This will involve breaking out of the mindset of ‘two parties; two-hour meetings; issues relating to separation and divorce’, and planning the mediation process more systematically, sympathetically and creatively, according to the needs of the parties and the dispute. Mediators will need to explore different ways of structuring the mediation meetings. For example, there is the option of an extended assessment meeting or intake in highly escalated cases, or even an additional assessment meeting. In the author’s experience, two half-day meetings can work well, based on three-hour meetings with the option of an additional hour. In addition, use of the ‘Bromley model’ can be highly effective in practice.6 Even the option of a follow-up meeting could be considered, to monitor the implementation of any agreement and modify it if necessary. Extra consideration should be given to the pacing of the meetings, to allow the parties ‘processing time’. From the author’s experience in mediating these sorts of cases, people are often more likely to shift their position in between sessions, rather than during the sessions themselves. Also, where necessary, it is important to allow time for the parties to seek and obtain further information or advice, and to consult with trusted family members or close friends and colleagues. Due to the emotionally charged nature of many of these broader family cases, pre-mediation meetings are more likely to assume greater importance. In these cases, more comprehensive assessment and preparation may be required, and some may also involve a significant amount of pre-mediation mentoring dialogue. 309

Exploring the scope of family mediation in England and Wales Family mediators must be prepared to manage significant power imbalances (especially between family members and public authorities), and to manage expectations regarding confidentiality (eg, where information is provided to local authorities relating to outcomes). From an administrative point of view, services and practitioners must be prepared to move away from standard letter templates, documentation, agreements to mediate and the standard memorandum of understanding and statement of financial information. Fees and charging models will also need to be re-evaluated and adapted. In the author’s experience, these ‘non-traditional’ family cases tend to be harder and take longer to bring to mediation, as the referral pathways are not firmly established compared to traditional family mediation. They tend to require more input upfront (eg, explaining the process; exploring concerns about attending), more patience and (where appropriate) more nurturing towards mediation. It is clear that family mediators in England and Wales will need to be open minded and ambitious in taking on more of these broader family cases. Lisa Parkinson has observed: ‘Mediation requires creativity, rather than standardised responses … Provided that the risks are recognized and evaluated carefully, opportunities for creative practice are essential if mediation is to continue to evolve, instead of stagnation’ (Parkinson 2011). Training implications Mediation training categories in England and Wales have traditionally consisted of foundation training and continuing professional development (CPD). However, as previously discussed, mediators – including family mediators – are increasingly broadening their practice into new areas and new standards for specific areas of practice are emerging (eg, special educational needs and disability mediation). As these trends continue, new specialist training in specific contexts (eg, elder mediation) is starting to emerge. Some of these broader areas of family mediation can be mediated by accredited family mediators (eg, sibling disputes); others require additional specialist knowledge and skills. Specialist training should be required for elder mediation and medical mediation (as is currently the case for child-inclusive mediation). FMC-approved training courses could be overseen by the Family Mediation Standards Board (FMSB). In other broader family areas – such as family trusts, wills, probate and family business disputes – mediators would benefit from having dual family/civil mediation training and perhaps attending shorter specialist training days. 310

What should happen now? Family mediation practitioners are used to mediating with two parties (separating couples) and mediation training is overwhelmingly focused on this approach. Many of these broader forms of family mediation involve multi-party participation or facilitation of discussions with several family members. There is now a clear need for more skills training courses on facilitating multi-party and multi-agency meetings. Family mediators also need to ensure that they are skilled in process design, to help them create a bespoke mediation process. For these broader forms of family mediation, where cases are typically highly complex with entrenched conflict, the process must be thoughtfully tailored to the parties’ needs and circumstances. This requires significant expertise and creativity. There is also a clear need for more ‘developing skills and mediation practice’ training courses on adapting and designing bespoke mediation models. For family mediation foundation training, such courses could benefit from the inclusion of a brief introduction to broader family mediation, to counterbalance the current narrowly prescribed scope of family mediation in England and Wales. Regulatory implications Regulatory considerations include setting standards, raising awareness and promoting best practice. The FMC and the FMSB should be pushing for greater recognition of family mediation as a profession, and for the term ‘family mediator’ to be a legally protected title in the UK. Specialist fields within family mediation have already emerged, with their own training and accreditation. This started with international child relocation and child abduction mediation, followed by direct child consultation and child-inclusive mediation. The FMSB could review its standards framework and consider accommodating these broader family mediation fields. It could organise an accreditation scheme which sets professional practice standards for elder and other specialist mediation, maintain a specialist register and approve specialist training providers. The existing international standard (EMIN) and code of ethics for elder mediation could be adopted while a UK code and standards are developed. A  balance must be struck, however, between setting the standards for these new specialist fields and making them accessible and sustainable for mediators and trainers. There is a risk that too many specialist fields may become too onerous in terms of training, supervision and CPD. The core purpose of the FMC is to represent and promote the interests of family mediation for the benefit of the public. The FMC is currently promoting family mediation on behalf of family mediators, but only in the narrowest sense. More joined-up thinking is urgently required.7 The FMC should expand its promotion of family mediation in a way that does not dilute its core principles and does not oversell it. Family mediation is not a panacea. It is essentially a modest intervention, albeit one that is capable of transformative results. 311

Exploring the scope of family mediation in England and Wales Finally, there is an acute need for more academic research, more writing up of cases and more sharing of innovative approaches regarding these broader forms of family disputes. To generate further discussion, a body of specialist knowledge and best practice should be built up and to this end, a  new spirit of sharing across the family mediation community in England and Wales should be actively encouraged.

Conclusion Family mediation in England and Wales is in a dynamic state. As a distinct field of mediation, it is expanding organically and in a purposeful way; and as a profession, it is emerging with confidence. In the author’s view, it is just starting to fulfil its potential. As family structures become more complex and family members are living longer and living further apart (geographically), there are now many other areas in which mediation is helping to support families. It is clear that the range of mediation work currently being carried out by family mediators in England and Wales is much broader than what the current FMC defined scope implies, what is being taught on family mediation training courses and what is referred to in most family mediation textbooks. To a certain extent, this is the market responding. Enquiries are starting to come in to services and practitioners, mostly through self-referrals. The family mediation profession must respond and adapt in turn. In all areas of broader family mediation referred to above, there is a gap between what family members need and what is currently being provided. Families find these conversations difficult to hold on their own, yet these issues are not usually capable of resolution by social care workers, lawyers or healthcare professionals – either alone or with multiple agencies, which will quite often be acting in an uncoordinated way. Family mediation can be used in most situations within the family where communication is proving difficult or where one party does not understand another’s point of view. It can be used at the pre-escalation stage (as a preventative measure to prevent a dispute from arising), during the dispute or conflict (as an intervention) or following a dispute, to agree a way forward (as a way of limiting any further damage). Commonly held assumptions about what constitutes family mediation in England and Wales should be re-evaluated and expectations about what family mediation can become over the coming decades recalibrated. Family mediation in England and Wales is now embracing public law cases and expanding into the health and social care sector. It may be used across the complete lifecycle of the family, from difficult 312

Conclusion decisions regarding treatment of newly born babies with life-threatening conditions to difficult conversations relating to end-of-life decisions for elderly relatives. Formally expanding the scope of family mediation in England and Wales would more accurately reflect what is happening at the practitioner level; would be more in tune with the cultural, technological and social changes that have occurred during the last 40 years; and would better meet the increasingly complex dispute resolution and conflict management needs of the twenty-first century family.

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Endnotes 1 Accredited family mediators are now working in prisons under a new scheme for prison residents which is funded by the LAA. Direct Mediation Services (DMS) is the first family mediation firm in England and Wales to work in prisons. The goals include reducing reoffending; supporting and strengthening families; building meaning and value in residents’ roles as parents; resolving financial and child arrangement issues; improving the mental health of residents; and breaking the cycle of criminality within families. The model at HMP Wormwood Scrubs involves using a ‘family mediation champion’ in each wing to provide information about the process and the potential benefits of taking part. Residents can then self-refer to family engagement workers who contact DMS, which will schedule a mediation information and assessment meeting (MIAM) with the resident and then contact the ex-partner and invite him or her to a MIAM at an external mediation centre or online. If mediation is suitable, a joint 60-minute meeting will be scheduled at the visitors’ centre. Usually, there are between two and three mediation sessions in total. 2 Research from the University of Purdue, Indiana, Professor Jill Suitor 3 The first inter-disciplinary pilot project in the UK was set up in 1993 by National Family Mediation and the Tavistock Clinic (Child and Family Department (1993–97) and funded by the Department of Health (1993–97). 4 The Charlie Gard case went to the High Court in March 2017. Great Ormond Street (the treating hospital) wished to confirm as lawful its decision to withdraw artificial ventilation and to move to palliative care only. The baby’s parents wished for treatment to be continued, whether in that hospital or elsewhere. The decision was taken to discontinue ventilation in July 2017. There had been a breakdown of trust and confidence between the two ‘sides’, exacerbated by the period of six or seven months prior to finally withdrawing ventilation. By the time of the final hearing, both sides were communicating only via their legal representatives. It is worth quoting from Judge Francis’s final decision: ‘I recognise, of course, that negotiating issues such as the life or death of a child seems impossible and often will be. However, it is my clear view that mediation should be attempted in all cases such as this one even if all that it does is achieve a greater understanding by the parties of each other’s positions. Few users of the court system will be in a greater state of turmoil and grief than parents in the position that these parents have been in and anything which helps them to understand the process and the viewpoint of the other side, even if they profoundly disagree with it, would in my judgment be of benefit and I  hope that some lessons can therefore be taken from this tragic case which it has been my duty to oversee.’ [18] Charlie Gard’s parents have since set up the Charlie Gard Foundation, which aims to ensure independent medical mediators are assigned to cases such as theirs, to help improve communication and transparency, as an alternative to going through the courts (www.thecharliegardfoundation.org, accessed online on 20 November 2019). In April 2018, there followed another case with another family and another hospital. Alfie Evans suffered from a progressive neurological degenerative condition. His parents disagreed with doctors over his treatment. They lost cases in the High Court, the Court of Appeal, the Supreme Court and the European Court of Human Rights. Their son died when he was 23 months old, when his life support was withdrawn. 5 The regulation of family mediation in the UK is leading the way in the mediation field. Accreditation is well established, fit for purpose and user friendly. Family mediators are highly trained and skilled, keep up to date with further approved training courses and other developments, and must undergo a re-accreditation process every three years. This all ensures quality and consistency of practice for potential referrers and users, who can have confidence in their family mediators. The FMC maintains a comprehensive and accessible register of practising mediators. Broadly speaking, the FMC deals with principle and policy, while the FMSB deals with implementation and practice, including regulatory and accreditation aspects.

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Endnotes 6 The ‘Bromley model’ builds in separate time with each party at an early stage in every session, and encourages direct communication and negotiation between the parties themselves (where it is safe and appropriate to do so). 7 For example, there is a link from the Independent Age website (which provides advice and support for those in older age), in an article about how mediation can help with estranged family members, to a page on the FMC website entitled ‘What is family mediation?’, which then refers only to separating couples.

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References Barclay, S (2017), ‘Mediating medical cases after Charlie Gard’, Medical Mediation Symposium presentation, 16 October 2017. Blake, L, Bland, B and Golombok, S (2015) Hidden voices: Family estrangement in adulthood, accessed online at www.standalone.org. uk/wp-content/uploads/2015/12/Hidden​ Voices.FinalReport.pdf on 19 November 2019. College of Mediators (2014) ‘Family Mediation’, accessed online at www.collegeofmediators.co.uk/search/node/Family%20mediation on 19 November 2019. Elder Mediation International Network (2018) Code of Ethics for Elder Mediators, 9th edition, accessed online at www.fmc.ca/wp-​ content/ uploads/2019/04/EMIN-Code-of-Ethics-9th-Edition-Sep2018.pdf on 19 November 2019. Family Mediation Council (2017) Family Mediation Survey, Autumn 2017 accessed online at www.familymediationcouncil.org.uk/wp-content/ uploads/2018/01/Family-Mediation-Survey-Autumn-2017.pdf on 19 November 2019. Family Mediation Council (2010) Code of Practice for Family Mediators, 9  September  2010 accessed online at www.familymediationcouncil.org. uk/us/code-practice/ on 19 November 2019. Family Procedure Rules (2010) Public Law Proceedings Guide to Case Management. Financial Times (2017)  FT  Money, Family Trusts, 28  October 2017 (Wilsons Law Firm, Freedom of Information Request). Great Ormond Street Hospital v Yates and Gard [2017] EWHC 1909 (Fam), The Hon Mr Justice Francis. Independent Age survey (2018), accessed online at www.independentage. org/news-media/press-releases/over-half-of-people-aged-65-and-oversay-they-arent-getting-enough-sex on 19 November 2019. Lake-Carroll, A (2017) Family Law & Justice: The current landscape and direction of travel, a briefing by Resolution, London, accessed online at https://resolution.org.uk/guide-word-in-letterpress-type/ on 19 November 2019. Legal Aid Agency (2018) Family Mediation Guidance Manual (September 2018). Munby, J  (2018) What is Family Law? A  lecture by Sir James Munby (President of the Family Division of the High Court and Head of Family 316

References Justice for England & Wales) at the University of Liverpool (Eleanor Rathbone Social Justice Public Lecture Series 2017–18). Office for National Statistics (2018) Families & Households in the UK report. Office for National Statistics (2019) Overview of the UK Population, August 2019, accessed online at www.ons.gov.uk/peoplepopulationand​ community/populationandmigration/populationestimates/ar ticles/ over​ viewoftheukpopulation/latest#the-uk-population-is-ageing on 19 November 2019. Parkinson, L (2011) Family Mediation, 2nd edition (Bristol: Family Law). Roberts, M (2015) ‘A view from the coal face: interdisciplinary influences on family mediation in the United Kingdom’, The Journal of Comparative Law, Vol IX Issue 2 108–18. Stand Alone Charity (2015) Family Estrangement Survey, accessed online at www.ipsos.com/ipsos-mori/en-uk/family-estrangement-survey-standalone on 19 November 2019. World Health Organization (2017) Elder Abuse Fact Sheet accessed online at www.who.int/news-room/fact-sheets/detail/elder-abuse on 19 November 2019.

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Chapter 16

Domestic abuse and family mediation: what can an experienced mediator tell us? Tony Whatling, interviewed by the editors

The following exchange with Tony Whatling examines, in some detail, key issues about mediation and domestic abuse and highlights what is necessary to ensure safe mediation practice. The aim of the interview is to explore the close relationship between these two topics. This goes to the importance of knowing how best to manage the process safely for all involved. An informed decision to attempt family mediation when domestic abuse is involved will depend on the knowledge and expertise of professional practitioners. Thus, in the interview which follows, Whatling, drawing upon his extensive experience and some case studies, highlights good practice guidance for the safe and effective provision of family mediation. Q: What is the definition of ‘domestic abuse’ that mediators adopt? Before describing the historical developments in the knowledge and understanding of domestic abuse in family mediation in England and Wales, we need to establish its current definition and incidence.1 The following contemporary understanding of ‘domestic abuse’ is now widely accepted across many organisations and professional practitioners: ‘Domestic abuse is behaviour that seeks to secure power and control for the abuser and the impact of which is to undermine the safety, security self-esteem and autonomy of the abused person. Domestic violence contains elements of the use of any or all of physical, sexual, psychological, emotional, verbal or economic intimidation, oppression or coercion’ (College of Mediators 2006). Q: Why is this so important a matter in mediation and in family mediation in particular? As has been well recognised, there is always a danger in all dispute resolution processes that the more powerful interests can prevail over the weaker ones (Roberts 2014). This is why fairness is a matter of central importance in mediation – a private and informal process of decision making, whose very advantages can also create risks (Folberg and Taylor 1984). Domestic abuse in family mediation dramatically highlights 319

Domestic abuse and family mediation concerns about fairness, power and the importance of ensuring that the necessary principles and procedures are in place to protect equality of participation in the process and in decision making. Q: What has been the evolution of domestic abuse recognition in the family mediation profession in England and Wales? The current definition of the College of Mediators highlights the wide range of behaviours that are now understood to constitute domestic abuse. This replaced the previous understanding of ‘domestic violence’ in the early 1980s, which was focused primarily on physical violence. At that time and over a period of some five years, research findings led to a greater evolved understanding of domestic abuse which influenced family mediation policy and practice. National Family Mediation (NFM) took a significant lead in that process: in the early 1990s it set up a working group to explore policy and practice guidance on domestic violence. It brought together representatives from mediation practice, management and training, and leading researchers in the field of domestic abuse. Over a period of 18 months, this group studied extensive research publications and debated the aforementioned polarised opinions that potentially divided them. To its credit, despite significant early differences of professional opinion, the group reached a sufficient level of consensus to be able to recruit a trainer to develop a domestic abuse training module.2 In 1996 the NFM policy on domestic abuse was published and introductory-level domestic abuse training was included in the core training curriculum for family mediators. In describing this early development of professional knowledge and understanding in England and Wales, it is worth noting the importance that was attached to the potential impact of domestic abuse on children. Questions arose at the time on the implications for practice – particularly regarding the responsibility of mediators to pay special attention to the safety of participants and their children. Drawing upon research findings on the impact of domestic abuse on children, it was emphasised that to be effective, professional practice should consider the variety of different forms that abuse and violence against children can take. Q: What is the current governing policy on domestic abuse? The key issues regarding safe mediation practice are summarised by the College of Mediators in its Domestic Abuse Screening Policy (2006, 1–2): ‘Each participant must make a fully informed and voluntary decision to enter mediation. This requires that each participant is sufficiently informed and has sufficient time to make the decision to attempt mediation after all safety issues have been fully considered. Safety issues must include not only the participants in mediation but also any children and any other significant member 320

Domestic abuse and family mediation of the family of either party. Assessment for Domestic Abuse and/or Child Protection is a continuing requirement which lasts throughout the whole of the mediation process. Implementation of this policy requires a written procedure for safe and effective screening for domestic abuse. Separate screening for domestic abuse must be carried out in circumstances that allow free, frank and safe discussion of the issues of domestic abuse to take place and a fully informed choice to be made by the participants as to whether or not to proceed to mediation. Mediators must adopt clear, written procedures to screen all clients and to record all decisions about the appropriateness of mediation and termination if domestic abuse or child protection issues have been identified. If mediation is appropriate, procedures to ensure client protection, child protection and mediator safety must be implemented and recorded in writing.’ What distinguished this policy was both its approach and the wide definition of ‘domestic abuse’ it adopted. Another important professional practice development to emerge from the policy is the understanding that it is not the role of the mediator to form a judgement as to the seriousness or level of abuse. The assessment role and function instead focus on the impact of the abuse on each party’s ability to participate safely during mediation and to negotiate from a position of relative power and autonomy. Q: What constitutes effective screening for domestic abuse before and during family mediation? An additional development that emerged from this growth in awareness and understanding of domestic abuse related to decisions regarding the suitability of mediation. In the early years, most practitioners took the view that this decision should rest with the parties. If the parties agreed to try mediation, it tended to go ahead. With the new awareness, it became clear that suitability for mediation should be determined through a tripartite decision-making process that included the mediator. Even if both parties wished to engage in mediation, the ultimate decision now rested with the mediator, based on his or her professional assessment of the level of risk and safety of all involved. A  further consequence of this development was that during the premediation assessment stage, many practitioners included a statement that clarified this aspect of the assessment. Typically, this referred to the fact that mediation is not a panacea and is not always suited to all types of dispute, all parties or all circumstances. The mediator would explain that by the end of the individual meetings, each party would need to make an informed decision as to whether to engage in mediation; and the mediator would also make a decision as to the potential for mediation to help in the parties’ particular circumstances. In addition, the mediator would clearly state that should he or she decide that mediation was not appropriate, 321

Domestic abuse and family mediation a letter would be sent to each party informing them of that decision. However, in keeping with the service provider’s policy, no reason would be given for the decision. The reasoning behind this protocol was that if one party disclosed a history of domestic abuse and/or intimidation and had no wish to attend mediation, that information would not be passed on to the alleged abuser. Experience had shown that any attempt to explain the reasoning behind the decision would likely result in the alleged abuser seeking to have detailed discussions on the grounds for the decision. In all probability, any such discussion would not only fail to satisfy the abuser, but could increase the risk of identifying the disclosure and hence expose the target of abuse to retaliation. Screening for abuse must be carried out in all cases at the mediation information and assessment meeting (MIAM) by appropriately trained mediators. Regardless of the presenting referral information, practitioners should be aware of their own unconscious bias and socio-cultural assumptions, which might result in a lack of focus or a ‘one-size-fits-all’ package. Irrespective of ever-increasing pressures on time and resources, every referral must involve a bespoke approach based on presenting needs, to avoid the risk of ‘off-the-peg’ practice. Q: Can you give some examples of poor practice approaches to screening for domestic abuse? Despite these advances in practice and standards, including a requirement for domestic abuse training for all mediators, anecdotal evidence highlights worrying variations in mediation screening practice. For example, having observed intake appointments, some trainees have reported that no questions were asked by the mediator regarding domestic abuse. Without further research, it is hard to say just how common this poor practice is. However, given the clear professional responsibility of mediators to ensure safe practice, how can this happen? One possible explanation could be that, as there is now so much complex administrative and financial eligibility assessment detail to cover in the initial MIAM, for some practitioners this has simply slipped from focus. Alternatively, it could point to some practitioners’ discomfort in raising such delicate and challenging personal issues. Other MIAM observers have reported that even where a mediator did raise screening questions, these were very brief, vague and unclear as to purpose, and failed to include any direct reference to abuse. One observer commented: ‘It was as if the mediator were tip-toeing around the issue, rather than grasping the nettle and asking directly’ (see further below regarding ‘soft’ versus ‘hard’ questions). It is also known that some practitioners deal with domestic abuse screening by sending clients a pre-mediation questionnaire that includes 322

Domestic abuse and family mediation the question, ‘Has there been any domestic abuse?’, followed by a yes/ no tick box (see further below for comments on why clients might not respond to such direct questions). In discussions with some of these practitioners, they stated that where a client ticked ‘yes’, they would then follow this up with a telephone call to ask for further details. These practitioners appear not to have considered the possibility that a target of domestic abuse might have to answer such a phone call in the presence of an abusive partner.3 Q: As an experienced trainer, can you give some examples of how to approach good practice screening for domestic abuse? Safe practice principles and protocols: When one party discloses being a target of domestic abuse and/or intimidation, a key part of the discussion will involve the extent to which he or she is or is willing (or not) for that information to be disclosed to the alleged perpetrator. This informed consent outcome must be based on the individual’s evaluation of his or her safety once the abuse has been raised with the other party. For reasons of personal safety, the target of abuse may not be willing for the information to be disclosed, but may be agreeable to the other party attending a MIAM to see whether he or she discloses any history of domestic abuse. As has been referred to above, the other party should be given the same impartial and unbiased assessment interview. In the process, that party may admit to abuse. If not, the abuse can be raised by the mediator only if this has already been agreed with the first party. Typically, at this stage the alleged perpetrator may admit to some domestic abuse, albeit that there may be a tendency for some degree of minimisation. Nevertheless, the conversation can then progress, in terms of an agreement that all such behaviour must stop immediately. Where appropriate, the perpetrator must also be agreeable to the negotiation of safe practice ‘ground rules’ for the mediation meetings. Should the perpetrator deny any domestic abuse behaviour, mediation is contraindicated, since negotiations for safe practice arrangements cannot take place. Another fundamental principle is that domestic abuse is never negotiable. In other words, an abuser cannot negotiate an end to domestic abuse in return for concessions by the other party – for example, agreeing to child contact or preferential financial settlements. Ending safely: Assuming best practice throughout the MIAM process, a sudden escalation of the risk of violence and abuse is uncommon. However, practitioners should be prepared for the possibility – perhaps arising from a disclosure by one party – that there may be a potentially higher risk level of anger and threat from an alleged abuser. If a decision is made that mediation will not proceed, the client at risk should be consulted about the safest way this decision can be conveyed to the other party and when this will happen. In all probability, the information will be sent by post, which creates space of a day or two to set up any safety plans. 323

Domestic abuse and family mediation Mediation service providers should create and maintain a regularly updated databank of potential sources of help and support, to make available to potential targets of abuse. Such data may include contact telephone numbers and locations for services such as urgent legal advice, if injunctions may be indicated; police domestic abuse prevention units; women’s refuges and support; emergency social work services; and child protection services. The primary aim is to empower the potential target of abuse to protect himself or herself, and any children, at a time of crisis. A selection of information leaflets about such services may also be helpful at a time when concentration on detail may be at a low level. The person at risk should also be helped to consider the pros and cons of such services, together with any other options that might be available from family and support networks. Assuming that the parties involved in the dispute agree to go ahead with mediation, some ground rules may need to be negotiated. These can often be presented as standard practice for the mediation service provider – for example, separate arrival and departure times, with the potential target of abuse arriving and leaving first. The mediation session should be scheduled only when other staff are present in the building. Separate waiting rooms should be available, ideally in close proximity to staff. A spacious mediation room, which allows for greater space between participants than a typical session room, can be helpful. Some practitioners favour a large table for all participants to sit around, as that acts as both a physical and symbolic barrier. Decorative objects common in many offices, such as vases, that could be used as weapons should be removed. Ideally, chairs should be of equal height and style. It is recommended that a potential target of violence should be seated nearest to the exit door. If an incidence of threat or violence occurs, he or she is more likely to be willing to be ushered out of the room than the more aggressive party. At the start of the session, as well as a recap on mediation principles and process, previously agreed ground rules should be confirmed, together with the commitment of both participants. Alarm systems should be provided – ideally a wired alarm system or at least a personal attack alarm. All members of staff should be trained to know what action to take if the alarm is used – for example, entering the mediation room and/or calling the police.4 Using shuttle mediation: Given the above references to safe practice in high conflict and domestic abuse circumstances, more detail on the option of shuttle mediation may be helpful here. In ‘shuttle mediation’, the mediator functions as a go-between, ‘shuttling’ between the two parties, who remain physically (and possibly temporally) apart. There are three main purposes behind the use of shuttle mediation. First, it aims to avoid confrontation, both for the parties and for the mediator, where the level of conflict is high. Second, it allows the parties to disclose confidential information to the mediator that they do not want revealed to one another. Finally, it gives the mediator the opportunity to discuss matters that would be uncomfortable to raise if the parties were together. 324

Domestic abuse and family mediation Across the range of mediation literature, most writers compare shuttle mediation to ‘caucus’ or ‘side meetings’, where parties may be separated briefly during a joint session. Typically, shuttle mediation is more specifically defined and includes opinions on its advantages and disadvantages.5 However, given the limited information on how to manage the process, it may help to look at it in detail here. Shuttle mediation usually takes longer than a joint meeting. If a joint meeting typically takes two hours, shuttle mediation may take at least three. During early individual pre-mediation meetings, the shuttle mediation process and how it will be managed should be explained to the parties. They need to understand that they will each have private meetings with the mediator. As a rule, everything that they say will be confidential, unless they give the mediator express authority to disclose matters to the other party. This means that they will spend some time alone while the mediator is with the other party. During this time, it is important that they try to stay focused on the matters in hand. They should be discouraged from planning to meet or telephone other people during this period, since this could complicate and compromise the integrity of the process. It is helpful to explain that every effort will be made to ensure that each party has equal time, but to be prepared for the possibility of a few minutes’ variations either way. Experience suggests that most clients are more concerned with the quality and ‘equity’ of the time spent with the mediator than with precise ‘equal’ time measurements. Each first solo meeting should begin with a reminder of the key principles and process of mediation, particularly regarding confidentiality. The first meetings will probably involve a summarisation of key facts and history, and clarification of the agenda issues for each party. Each solo meeting should be concluded by summarising key issues and clarifying what can and cannot be shared with the other party. Before moving from one person to the other, it is helpful to leave something specific for the waiting party to do while he or she is alone. For example, he or she might reflect on what was covered in the meeting; the extent to which he or she felt heard, understood and able to discuss issues of concern; and any issues that have not been raised so far. The party may find it helpful to make some brief notes on such issues. Ideally, the meetings will progress through the initial stages to consideration of options for future change. Here, it is also helpful to leave the parties with the task of listing their own potential proposals for options, including what they hope for and what they might be prepared to offer in return. As regards what can and cannot be relayed to the other party, it may be helpful for the mediator(s) to write this down – perhaps on a flipchart, which can be used as a portable aide memoire. This written summary 325

Domestic abuse and family mediation of discussions usefully symbolises the principles of transparency and clarifies what each party wants to be shared. It is not a verbatim record of discussions, but rather the equivalent of business meeting ‘minutes’ which each party can be invited to ‘own’, including how he or she would like them to be worded. It also may be worth encouraging the parties to reflect on how each thinks the other might respond to any particular summary wording. Clients in the early stages of dispute are inclined to focus on and describe negative perceptions of the other party. For example, they tend to list the other person’s many faults, what they want him or her to stop doing, and their own highly idiosyncratic opinions on the solutions and way forward for the future settlement. This latter ‘prescription’ tends to define all changes expected of the other person, rather than themselves. Using strategic questions: Little has been published on the ‘what’ and ‘how’ of questions that may help with screening and potential disclosure of domestic abuse. Questions are said to be the ‘bread and butter’ of strategic mediation practice, especially when of the ‘open-ended’ type. Ideally, they are used purposefully and with strategic intent, rather than just randomly plucked out of the air. For example, when attempting to help parties make the transition from ‘exploring the issues’ to ‘option development’, the mediator – ideally having provided in-depth summaries to the parties – might ask a series of open-ended questions. These might include: ‘How would you like things to be different from now on? What needs to happen to make that possible? Who needs to do what differently from how things were before? Who else might be able to help with that?’6 Live observation of trainees, and even experienced practitioners, shows that many still struggle to make the switch from closed-ended and leading questions to the much more effective open-ended style. The latter makes respondents think, consider, reflect and articulate beyond a simple yes/no answer. The same strategic principles apply to domestic abuse screening questions. It is known that the perpetrators and targets of abuse may deny and/or minimise any incidents or history of abuse. For the parties, the reasons for such denial are many, complex and varied. They are often associated with a combination of emotions such as guilt and shame; displacement or projection by perpetrators; fear of reprisal; and widely differing sociocultural definitions of what constitutes domestic abuse. Best practice indicates that during separate intake and assessment meetings, screening questions should be gender neutral and always asked of each party. For reasons referred to above, asking direct ‘hard’ questions about domestic abuse may lead to denial. Equally, indirect or vague ‘soft’ questions may also fail to grasp the nettle. What is needed is a balance of both – starting at one end of the scale, with the more general, impartial, indirect, open-ended soft questions, and progressing through to the other 326

Domestic abuse and family mediation end with more direct, focused questions. It is important that mediators find a language for these questions which is natural and comfortable, both for them and for the parties. It is also essential that parties are made aware that each will be asked the same types of questions. For the practitioner, regardless of whether he or she has had disclosure from an abused partner or prior information from a referrer, each party is entitled to valuefree, gender-neutral questions. Difficult as this impartial mode might be when certain information has already been disclosed, each party has the right to a clean-sheet style of questioning. Q: Can you offer some examples of impartial non-leading questions? These might include (but are not limited to) the following: • What do you imagine it might feel like if you came to a joint mediation meeting? • How easy or hard might it be for you to take full part in mediation? • What might make it difficult to speak about what you want and need from mediation, and what would help with that? •

How would you describe arguments with your partner in recent weeks/months?

• How similar or different has that been to how life was earlier in the relationship? • When you disagree, what does it sound like or look like, and how does it usually end up? •

When you have an argument, does the same person always win or might it go either way?

•

What happens if someone gets so angry that they find it hard to control their temper?

• What sorts of things might trigger such anger during an argument? •

When things get heated, has anything been damaged or broken?

• What was the worst-ever ending to such an argument? • Has anybody ever hit anyone or been hit, and if so, what sort of injury resulted? • What sort of treatment was needed, if any (eg, GP, hospital, X-ray, stitches)? By no means will all of these questions need to be asked; they are offered more as a selection. Nor need they be asked in a linear form, since answers to some may facilitate disclosure and pave the way to different questions, such as questions regarding the effect of abuse on a party’s ability to take part in mediation. 327

Domestic abuse and family mediation For example, if a party refers to ‘only some occasional pushing and shoving, and a few slaps’, it is essential that the mediator does not assume that he or she knows what this means and therefore that there has been adequate disclosure. A more concrete analysis must flow from such statements. For example, a strategic mediator response might be to ask such clarifying questions as the following: • How often might such things happen during arguments? • How far have the rate and severity increased over time? • What was the worst-ever outcome of such actions, in terms of any injury and/or need for medical attention? • When that has happened, how would you describe the effects emotionally on each of you? • What might be the effect of that for either of you if you came to mediation? Q: Can you give examples of circular questions? A  circular question is one that invites the respondent to put himself or herself in the position of the other party and so consider the situation from a completely different perspective. These questions are open ended, to avoid a simple yes/no response. They might include the following: • How far might your partner feel they are frightened of you? • How far might your partner feel you are frightened of them? • How comfortable would you imagine your partner might feel about sitting in the same mediation room as you? • How worried or concerned might your partner be about things you say or do in a joint meeting? • How far might your partner say you always win or lose when there are disagreements? The idea behind this style of questioning is that some parties may be unsure as to why they are being asked such questions or where the mediator is ‘coming from’. To use a driving analogy, the following examples are designed to ‘signal purpose and intent’: • We know that it can be hard for some people to come to somewhere like this and feel confident that they will be free to say what they need or want to say. How far might that be a problem for you? • Sometimes people have reasons to worry about what will happen to them if they speak honestly and openly about what has been happening and what they want from mediation. How far might that be a problem for you? 328

Domestic abuse and family mediation • When people have been in a relationship for any amount of time, they can sometimes get to feel that their partner always wins or gets their own way, so it is pointless trying to change. How far would you say that has happened to either of you in your relationship? • Every family I know argues or fights in their own special way. Some scream and shout; some throw things; some just walk off and/or sulk. What’s it like in your family? The above examples are not all-inclusive and can be added to as practitioners learn from regular reflective practice which questions are more or less useful in the screening process. It is possible that one party might become increasingly defensive, either verbally or non-verbally. In this event, it is helpful to comment along the lines of, ‘I appreciate that this is a difficult subject, so I need to explain that it is a process that we are required to go through with every individual during the MIAM. Mediation only works when everyone feels safe, secure, able to speak freely and negotiate from a position of autonomy.’ It may also help to reframe such attributions in terms of what the parties do want from each other in future, rather than what they don’t want. Such reframing must satisfy each party as to its accuracy and validity. In other words, the transformation of language captures the essence and authenticity of their perceptions and feelings, rather than simply imposing the mediator’s views or opinions. For example, one party may say of his or her partner: ‘They have broken all trust between us. I can no longer rely on their promise to change and any agreement they make here is unlikely to be kept to.’ The mediator might summarise this as: ‘What I am hearing is that, if you are to negotiate constructive future plans and arrangements, you would both need to feel confident that you can trust each other to keep to those agreements. If that is a fair summary, how can we word that in terms of specific future-focused actions or behaviours you would want to request of your partner?’ This example also demonstrates how it is often possible to mutualise the parties’ goals. In other words, one party might say: ‘They lie about me and badmouth me to others, including our children, so as to win them over to their side.’ This could be reframed as: ‘That sounds like you would both need to agree a parenting principle – for example, that neither of you will make negative comments to anyone about each other, especially to the children.’ Listing parenting principles is often a useful way to interrupt circular arguments centred on the spousal dispute. They also emphasise parents’ mutual concerns for their children, rather than their own selfinterest driven by the emotion of ending a relationship. In shuttle mediation, when moving back to the waiting person, it helps to begin by checking in on how he or she is feeling and how he or she fared with the task that was set. This reinforces the practitioner’s 329

Domestic abuse and family mediation ongoing interest, concern and respect for that person. Only then should reference be made to anything that the other party might have agreed can be disclosed, requested or proposed. Again, the response should be summarised, clarified and, where helpful, positively reframed. Depending on the complexity of the dispute, these preliminary stages may take some time; but it is better to clarify the key issues in some detail before moving to the next meeting. Commonly, the separate meetings will usually last about 30 minutes. Much longer than that can risk the waiting party becoming bored, frustrated and curious about what is happening. If for any reason the agreed timing needs to be extended by more than ten minutes, it is worth letting the waiting party know and giving an estimate of the delay. If all is progressing well, it might be possible to identify whether the parties are ready to move on to any potential areas of agreement. In some respects, the mediator can have more influence and flexibility in shuttle mediation to respectfully challenge, probe and clarify the parties’ narratives and positions. During a joint meeting, this may risk a defensive face-saving reaction or questioning of the mediator’s impartiality. For example, each person can be asked to imagine how he or she might feel in the position of the other party; what, with hindsight, he or she might have done differently or not at all; and what his or her worst fears might be if mediation is unable to resolve the issues. Gradually and respectfully destabilising the parties’ fixed positions and sense of conviction in their own stories can be a useful way of helping them to move on to future-focused, problem-solving negotiations. This dialogue is not designed to provide an alternative interpretation favoured by the practitioner, but provides an opportunity to look at the situation from another position in the landscape. It must also be done with a level of genuine respect that has been earned by the mediator during the earlier stages. At some point, things may have progressed sufficiently well to present the opportunity for a joint session – even if only for the last few minutes of the appointment. Both parties must be very willing and ready for this possibility, without coercion. If either is unsure and still feels unsafe, a joint session should not happen. But if it does, it can be a useful opportunity to highlight any progress made thus far. It also provides a reality check of the detail regarding who has agreed to do what, when and how. Such reality testing can also usefully include thoughts about what, if anything, might go wrong with the plans and hence explore ideas as to how to manage any such problems. Some practitioners are reluctant, as they say, to ‘go there’, fearing that it might threaten or undermine progress. However, at the point where the parties are collaborating on agreements, they are more likely to see the importance of doing everything possible to ensure the workability of 330

Domestic abuse and family mediation their plans. It can also present an opportunity to check how they prefer the ‘outcome statement’ to be worded, thereby increasing their sense of ownership of their plans. Genuine and respectful comments from the mediator as to the progress they have made thus far, compared to when they first arrived, can also create a rewarding sense of mutual achievement between them. Q: As an experienced family mediator and professional practice consultant/super visor, can you give practice examples of cases showing how have you approached the problem of domestic abuse? Case example 1: A  couple, Moira and Richard, had attended four joint sessions of mediation to negotiate details concerning finance and property, as well as the children’s arrangements. The very experienced co-workers had screened appropriately at the intake stage, seeing each party separately on different dates, with no disclosure of domestic abuse. The concerns raised at supervision were that the Moira was increasingly conceding to Richard’s proposals, in particular regarding the large and valuable family home. Richard explained that it was essential that he remain in this property, which included substantial outbuildings from which he ran his building business. Richard also owned a modest twobedroom flat, which he proposed signing over to his wife and three children. This arrangement would involve a change of schools for the children, with loss of community and peer contacts. Richard’s proposals for financial support and pension sharing were similarly disadvantageous to Moira and the children. It was clear that the financial settlement Richard was proposing would in all probability be unacceptable to any independent legal adviser or to a divorce court judge. In joint meetings, the mediators had made efforts to help both parents explore alternative options. Despite their best efforts, Moira remained adamant that the settlement would be acceptable and fair. The mediators were advised that at the next appointment, the parties should be seen separately, on the grounds that it was common practice to monitor and review privately with the parties how each felt the process was working. This was agreed and Moira was duly questioned as to why she was accepting the proposed settlement. At this point, she disclosed for the first time that in 12 years of marriage, Richard had never been physically violent, but tended to be very controlling and intimidating. She added: ‘When he looks at me in a certain way, I fear for my life and I think that he could kill me. He is looking at me like that now most of the time, especially when we are here; so I want to end the marriage as soon as possible, on whatever terms and at whatever cost to myself and the children.’ The dilemma for Moira, and subsequently for the mediators, was how to end mediation safely and in such a way that her husband would not 331

Domestic abuse and family mediation learn about the disclosure. In this instance, the mediators were able to share with the couple in a joint session their concerns about the proposed settlement package. It was explained that in their view, the proposals for a settlement would very probably be unacceptable both to their respective independent legal advisers and to a divorce court judge, who would have a duty and responsibility to ensure an equitable outcome. On these grounds, they decided to terminate mediation, with the advice that both parties should consult with their independent legal advisers. Unsurprisingly, Richard expressed a degree of dissatisfaction with the outcome, on the grounds of the principles of mediator impartiality and the rights of parties to negotiate a settlement on their own terms. Fortunately, it looks as though the mediators were able to divert attention away from the disclosure issue. This case example usefully illustrates how the assessment of risk has less to do with levels of violence than with the impact of the abusive behaviour on the abused person’s capacity to negotiate from a position of relative autonomy and power.7 Case example 2: By way of contrast with the above case example, Amanda attended a pre-mediation assessment meeting and described a previous relationship that had included a compilation of serious levels of physical, financial and psychological abuse. Eventually, Amanda had found a way to escape with her young baby; she was accommodated in a women’s refuge and obtained court injunctions against her former partner making contact. She subsequently found a new and very different partner, Tom. Amanda described how they now had accommodation, a strong social support network and a baby of a few months, all of which left her feeling safe. While not involved in the assessment meeting, Tom was introduced in the waiting room and was caring physically for the baby. Amanda’s former partner had relocated from the South to the Northwest, was in a new relationship and was considering a court application for contact. Contact had not happened in the meantime and Amanda had established a new and safe relationship over a period of some two years. Given the history of previous domestic abuse, the mediators were concerned as to the viability of mediation. Amanda acknowledged that at the time her previous relationship had ended, she would not have felt safe attending mediation. Nevertheless, she now felt safe and empowered enough to be able to face her former partner and negotiate a suitable contact arrangement. She was strongly of the opinion that her former partner was driven more by his sense of paternal rights than by a genuine wish to see the child. He had not contributed financially since the separation. He was offered an intake interview by his local mediation service, but declined and there was no further contact for several months. Another factor in this case was that, knowing her former partner as well as she did, Amanda believed that he would be less inclined to display violent behaviour at mediation than in the legal court action environment. 332

Domestic abuse and family mediation Clearly, many other factors would have had to be assessed in this case before mediation could be considered. Case example 3: This case example illustrates how each party may have differing perceptions of one incident. At a pre-mediation assessment meeting, Pam claimed that although he had never previously been violent, Pete – her husband of 15 years – had always been very controlling and possessive. She described how one evening, when she was preparing to go for a night out with female work colleagues, he attempted to discourage her from doing so. An argument ensued, which she said had resulted in his grasping her by the shoulders, shaking her and pushing her backwards. She said that she had tripped, fallen and banged her head on the floor. Despite some bruising, the incident was not serious enough to stop her going out as planned. At his separate pre-assessment meeting, when asked about any history of domestic abuse, Pete readily referred to this same incident. However, his account was that during an argument about her going out, she had lost her temper and was standing within an inch of his face, screaming, shouting and spitting. He explained that the only reason he had pushed her away was to ‘get her out of my face’. He described feeling frightened and ashamed about her fall, as it was not in his nature to abuse or hit anyone. This case illustrates a situation in which, at one level, the differing individual perceptions were of no great practical significance. What was of importance was the effect on their ability to negotiate. Case example 4: At a pre-mediation assessment, Sandra explained that she and her husband Steve managed a hotel. She disclosed, in very precise detail, examples of each specific incidence of his domestic abuse. These included how he had persuaded friends to force her into the cellar, hit her and threaten to kill her unless she gave in to her husband’s demands. During his meeting, Steve described precisely the same story and exact details of the events. However, his story was a mirror image of Sandra’s, in which he was the alleged victim. In this case the historical accounts were so wildly at odds as to suggest that mediation was contraindicated. There are times when mediators need to understand that, however curious they may be, a search for the truth is a ‘fool’s errand’. Practitioners rarely deal with truth or lies, but rather with ‘perceptions of reality’ or ‘personal constructs’ as to each person’s idiosyncratic view of the world. What matters is that there is sufficient potential congruence in both parties’ accounts and detail to be able to move on to future-focused negotiations and plans for change. Q: In what other areas of family mediation is domestic abuse screening important? Screening is also important for family disputes involving the elderly. For example, victims of abuse may be suffering from increasing physical or 333

Domestic abuse and family mediation mental incapacity, which may be alarming and frustrating for carers. In such cases the abused person may be mentally incapable of accounting for injuries and/or abusive partners may describe signs of abuse as evidence of the patient’s confusion. Conversely, mentally confused partners may be abusive and their spouses reluctant to disclose for fear of the outcome. Traditionally, GPs and casualty services have often accepted carers’ accounts of patients’ frailty and tendency to fall. It seems also that in some cases of abuse, professionals and extended family members experience a level of ‘unconscious bias’ or ‘rose-tinted spectacles’, linked to sociocultural assumptions that the elderly spouses are in their twilight years of care and companionship, especially when a relationship has not hitherto been abusive.8 Older people may also be particularly affected by what may be perceived as ‘low-level’ individual incidents which, as part of a longstanding pattern of cumulative abusive behaviour, can have consequences that can equal or surpass those of any individual incident.9 Specific risk factors for older people – including the development of health needs, retirement (resulting in increased contact), stress associated with caring roles and social or geographical isolation – may place them at increased risk from domestic abuse. As we age, our ability to recover from both mental and physical abuse can be adversely affected, and the impact of domestic abuse can be particularly profound for those who may be reliant on a partner to provide care and financial support. Additionally, for some older people, certain factors may make them less likely to disclose domestic abuse. These include concerns about sharing information that is considered to be private, and embarrassment and shame about a situation of domestic abuse. Long-term undermining of an individual’s self-esteem over many years could intensify these feelings (Craig 2003).

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Endnotes 1 The existence of domestic abuse between same-sex partners is also acknowledged, but the content of this chapter focuses mainly on opposite-sex couples. 2 The trainer appointed brought substantial experience as a mediator and service manager, as well as experience of work with domestic abuse and women’s refuge services. A postbasic training programme was subsequently piloted and additional trainers were selected to deliver it to all NFM mediators in practice. 3 Issues of safe practice and examples of open-ended questions that can be asked, not just in domestic abuse contexts, have been published in more detail in Whatling (2012: 135–147). 4 For further ideas on how to manage high-conflict mediation, see Whatling (2017). 5 For example, see Roberts (2014: 159–160): ‘In disputes following family breakdown, the disadvantages of shuttle outweigh the advantages, except in special circumstances such as illness, extreme stress, or fear of intimidation, where it could (although not necessarily) be of value as a prelude to joint negotiation. A vulnerable partner may feel safer communicating at a distance, but it is fair to say that if the level of conflict, anxiety or fear is that high, mediation is probably not appropriate anyway.’ 6 For more detail on the strategic use of questioning in mediation, see Whatling (2012: 75–94). 7 This reflects the College of Mediators’ latest professional standards Code of Practice, in particular the following sections: ‘Safe Participation in the Process. In order for mediation to be effective all participants should feel safe to be involved in the process and to freely communicate their interests and concerns without fear of punishment or repercussion. Fear of harm may indicate domestic abuse within personal relationships, or bullying or harassment within workplace, neighbourhood and other settings. In all cases, mediators must seek to discover through a screening procedure whether or not there is fear of abuse or any other harm and whether or not it is alleged that any participant has been or is likely to be abusive towards another. Where abuse is alleged or suspected mediators must discuss whether any participant wishes to take part in mediation and consider with them where they might access other support services. Where mediation does take place, consideration must be given to any practical arrangements that can be put in place in order to ensure the comfort and safety of all involved’ (College of Mediators 2017: 4–5). 8 Yvonne Craig, a pioneer of elder mediation in Britain, conducted research focused on the theory that mediation can contribute to the prevention of elder abuse at the early stages of conflict. She maintained that life transitions experienced by the elderly often lead to stress and conflict. If this conflict is suppressed or exacerbated, their relationships may become painfully poisoned or erupt into threats and violence. She and her team developed the Elder Mediation Project in the belief that older people do well when they develop their natural skills in managing their own conflicts. 9 Richard Powley, head of Safeguarding at Age UK, has usefully highlighted key elements of concern. For example, there is evidence from criminal cases (domestic homicide and serious case reviews) that domestic abuse issues for older people often go unrecognised, which means that protective or supportive measures that may have reduced the risks of harm are not put in place.

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References College of Mediators (2006) Screening Policy on Domestic abuse, accessed online at www.collegeofmediators.co.uk on 20 October 2019. College of Mediators (2018) Code of Practice for Mediators, accessed online at www.collegeofmediators.co.uk on 20 October 2019. Folberg, J  and Taylor, A  (1984) Mediation: A  Comprehensive Guide to Resolving Conflicts without Litigation (Hoboken: John Wiley & Son). Roberts, M (2014) a-z of mediation (Basingstoke: Palgrave Macmillan). Roberts, M  (2014a) Mediation in Family Disputes Principles of Practice (4th edition) (Aldershot: Ashgate Publishing Limited). Schon, D  (1983) The Reflective Practitioner: How Professionals Think in Action (New York: Basic Books). Whatling, T (2017) ‘Mediating high conflict matters: To what extent are ADR practitioners and trainers adapting to meet the challenge of increases in high conflict levels in dispute resolution, including developments in social media and electronic communications?’, Journal of Mediation and Applied Conflict Analysis, Vol 4 Issue 1 491–502. Whatling, T  (2012) Mediation Skills and Strategies. A  Practical Guide (London: Jessica Kingsley).

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Index

[All references are to page numbers]

A Abuse see also Domestic abuse truth, 165–167 Academic teaching of family mediation conclusion, 287–288 generally, 273–274 indicative content features associated with family disputes consulting children, 285–286 issues of safety and power balancing, 284 sources of power imbalance, 284–285 generally, 273, 287 nature, principles and boundaries of family mediation, 280–283 research findings, 286–287 theoretical sources for course conflict theory and conflict management, 279–280 dispute resolution processes and informal justice concerns, 276–278 generally, 276 negotiation and mediation theory, 278–279 introduction, 8 history and current relevance of higher education course College of Mediators (CoM), 275 Family Mediation Council (FMC), 275 Family Mediation Standards Board (FMSB), 275 generally, 274–275 UK College of Family Mediators (UKCFM), 275 Access to Justice Act 1999 generally, 184 ADR Group (ADRg) generally, 36, 38, 39

Adult sibling mediation generally, 301–303 Advisory Committee on Legal Education and Conduct (ACLEC) report, 38 Advocators ‘third party’, 128 Alongsiders ‘third party’, 128–129 Alternative dispute resolution (ADR) academic teaching of family mediation, 276, 278, 280–281 models, styles and third parties see Models and styles; Third parties power see Power Scotland, 81, 89–90 Assessment capacity and truth, 167–168 child abduction cases, 211 B Balance see Impartiality Bargaining power generally, 141–143 C Capacity assessment and truth, 167–168 Certificate in Family Mediation (Accredited) (CFM(A)) Scotland, 85 Certificate in Family Mediation (Registered) (CFM(R)) Scotland, 85–86 Cheerleaders ‘third party’, 129 Child abduction cases Child Abduction and Custody Act 1985, 203 Child Abduction Mediation Scheme, 204, 211, 217

337

Index Child abduction cases – contd conclusion, 219–220 Family Mediation Council (FMC), 209, 219 generally, 203 Hague Convention on the Civil Aspects of International Child Abduction 1980 establishing a mediation model, 210 generally, 203–204, 206 relevant articles Art 7 and 10, 204–205 Art 13 (acquiescence), 205 Art 21 (rights of access), 217 generally, 204–205 Reunite mediation process,  212 introduction, 6–7 legal context, 203–204 international child abduction adoption of term, 203–204 mediation establishing a model, 210–211 Family Mediation Council (FMC), 209 generally, 207–210 Legal Aid Agency (LAA), 209 Reunite generally, 203, 206, 207–209, 219 mediation process, 212–218 Children and Family Court Advisory and Support Service (CAFCASS), 212 Family Mediation Council (FMC) Code of Practice, 212 Hague Convention, 212 mediation information and assessment meeting (MIAM), 217 use of new technologies, 218–219 screening and assessment, 211 socio-legal context and introduction of family mediation, 206–207 time constraints, 204 use of new technologies, 218–219 Child-inclusive mediation (CIM) see also Children’s involvement in mediation competence, 47 generally, 124–125

Children Act 1989 children’s welfare and safety centre of judicial decision making (s 1(3)), 182 generally, 181, 190 ‘no order’ principle (s 1(5)), 36–37 Welfare Checklist, 37 Children and Families Act 2014 child-inclusive mediation, 192 generally, 42, 275 pre-application protocol, 14 Children (Scotland) Act 1995 generally, 77, 80, 81 parents, children and guardians (Pt I), 81 Children’s involvement in mediation changing perceptions of mid-1980s to late 1990s conciliation pioneers Finer Committee on One Parent Families (1974), 185 generally, 185–187 Lothian Family Conciliation Service, 186 National Family Conciliation Council (NFCC), 185 divorce harmful for children, 184– 185 legal framework European Convention on Human Rights (1953), Art 8, 182 generally, 182–183 Hague Convention (1980), 182 United Nations Convention on the Rights of the Child 1989 (UNCRC) generally, 181, 182 views of the child (Art 12), 182 sociological approaches to children Access to Justice Act 1999, 184 Family Law Act 1996 generally, 184 legal aid for mediation in family matters (Pt III), 184 generally, 183–184 Children Act 1989 children’s welfare and safety centre of judicial decision making (s 1(3)), 182

338

Index Children’s involvement in mediation – contd Children Act 1989 – contd generally, 181 conclusions, 196–197 current picture child-inclusive mediation Children and Families Act 2014, 192 College of Mediators, 194 Family Justice Review Final Report (2011), 192 Family Justice Young People’s Board (FJYPB), 192–193 Family Mediation Council (FMC), 193–194 generally, 191–194 children’s agency, 194–196 generally, 181–182 introduction, 6 new insights in 21st century implications for practice, 190–191 research advances, 187–190 sexually and gender diverse relationships, 238–242 Voice of the Child Dispute Resolution Advisory Group, 46, 125, 192, 197 Civil Evidence (Family Mediation) (Scotland) Act 1995 generally, 82–84 College of Mediators (CoM) child-inclusive mediation, 194, 197 generally, 39, 48, 275, 283 training and regulation in UK, 255, 258 Comprehensive Accredited Lawyer Mediators Scotland (CALM) generally, 80–82, 84–88 Conciliation services see Children’s involvement in mediation Continuing professional development (CPD) generally, 38–39, 43–44, 46–47, 310, 312 Scotland, 84–89 Crime and Courts Act 2013 generally, 42 D Development of regulatory framework for practice in England and Wales ADR Group (ADRg), 36, 38, 39

Development of regulatory framework for practice in England and Wales – contd Advisory Committee on Legal Education and Conduct (ACLEC) report, 38 child-inclusive mediation (CIM) competence, 47 Children Act 1989, s 1(5), 36–37 Children and Families Act 2014,  42 College of Mediators (CoM), 39, 48 conclusion and way forward,  48–50 continuing professional development (CPD), 38, 39, 43, 44, 46–47 Crime and Courts Act 2013, 42 emergence of family mediation and regulation, 35–39 European Charter on Training in Family Mediation in Divorce and Separation, 37 Family Justice Young People’s Board (FJYPB) National Charter, 46 Family Mediation Council (FMC) Assessment of Professional Competence (APC) scheme, 42 Code of Practice for Mediators Board responsibility, 44–45 generally, 42 constitution, 39 generally, 33–34, 39, 41–50 inauguration, 39 Family Mediation Council accreditation (FMCA), 40, 43–45, 49–50 Family Mediation Council Board, 43–46 Family Mediation Standards Board (FMSB), 41, 43–49 Family Mediation Task Force, 46 Family Mediators Association (FMA), 36–39 generally, 33–35 introduction, 3–4 Law Society Family Panel accreditation, 42 Legal Aid Agency (LAA), 33–34 Legal Aid Board, 37

339

Index Development of regulatory framework for practice in England and Wales – contd Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), 41–42 Legal Services Commission (LSC) generally, 38, 39 Mediation Quality Mark Standard (MQM), 38 mediation information and assessment meetings (MIAMs), 40–43 National Family Mediation (NFM), 36–39 National Vocational Qualifications, 37 Professional Practice Consultants (PPCs) Code of Practice, 42, 45 generally, 33–34, 38, 44 regulatory project, 42–45 Resolution, 36, 38, 39, 48 standards framework extending, 45–47 reviewing, 47–48 turbulence, transition and transformation, 39–42 UK College of Family Mediators (UKCFM), 37–39, 46 Voice of the Child Dispute Resolution Advisory Group, 46 Domestic abuse current governing policy, 320–321 definition, 319 effective screening, 321–322 evolution of recognition, 320 examples case studies, 331–333 circular questions, 328–331 how to approach good practice screening, 323–326 impartial non-leading questions, 327–328 poor practice approaches to screening, 322–323 generally, 319 importance of matter, 319 introduction, 8 other areas of family mediation where screening important, 333–334 power, 151–152

E Elder mediation generally, 305–307 England and Wales current standards for training, 258 exploring scope of family mediation see Exploring scope of family mediation in England and Wales family mediation services business disputes within family, 303 future of, 19–25 generally, 12–14 quality assured, 308–309 regulatory framework for professional practice see Development of regulatory framework for practice in England and Wales shift in policy and practice framework see Reconstruction in post-justice world Ethics conclusions, 107–108 generally, 97–98 introduction, 4–5 normative frameworks as protections for vulnerable, 105– 107 professional practice conduct, 100–102 process ethics: neutrality and/or impartiality, 102–104, 108 underpinnings of family mediation, 98–100 European Charter on Training in Family Mediation in Divorce and Separation generally, 37 European Convention on Human Rights (1953) right to respect for private and family life (Art 8), 182 Exploring scope of family mediation in England and Wales adult sibling mediation, 301–303 changing family structures, 298–299 conclusion, 312–313 current situation, 299–301 current understanding, 296–297 elder mediation, 305–307 evolution, 297–298

340

Index Exploring scope of family mediation in England and Wales – contd family inheritance mediation, 303– 304 family mediators equipped/family mediation suited to deal with broader family matters, 308– 309 generally, 295–296 introduction, 8 medical mediation involving children, 307–308 public family law, including child care mediation, 304–305 renewed approach generally, 309 practice implications, 309–310 regulatory implications, 311–312 training implications, 310–311 F Facilitators ‘third party’, 127–128 Fairness and justice generally, 11–12 meanings, 11 procedural fairness, 11 substantive fairness, 11–12 substantive justice, 12 Family inheritance mediation generally, 303–304 Family Justice Young People’s Board (FJYPB) generally, 192–193, 197 National Charter, 46 Family Law Act 1996 generally, 13, 37, 184 legal aid for mediation in family matters (Pt III), 184 Family Law (Scotland) Act 1985 generally, 76, 78 Family Law (Scotland) Act 2006 generally, 78 Family mediation academic teaching see Academic teaching of family mediation child abduction cases see Child abduction cases children’s involvement see Children’s involvement in mediation development and evolution Ireland see Ireland

Family mediation – contd development and evolution – contd regulatory framework for professional practice in England and Wales see Development of regulatory framework for practice in England and Wales Scotland see Scotland domestic abuse see Domestic abuse ethical implications see Ethics exploring scope in England and Wales see Exploring scope of family mediation in England and Wales introduction, 1–9 Ireland see Ireland ‘mainstreaming’, 3 models and styles see Models and styles other areas where domestic abuse screening important, 333–334 possible future directions, 19–25 power see Power quality training see Training and regulation reconstruction in post-justice world see Reconstruction in postjustice world Scotland see Scotland sexually and gender diverse relationships see Sexually and gender diverse relationships third parties see Third parties truth see Truth two distinctive features of mediation, 1 voice of the child see Children’s involvement in mediation Family Mediation Council (FMC) Assessment of Professional Competence (APC) scheme, 42 child-inclusive mediation, 193–194, 197 Code of Practice for Mediators Board responsibility, 44–45 generally, 42 third parties, 126 constitution, 39 generally, 33–34, 39, 41–50, 275, 283 inauguration, 39 international child abduction, 209, 219

341

Index Family Mediation Council (FMC) – contd Manual of Professional Standards and Self-Regulatory Framework (2014), 34 training and regulation, 255–263, 266 Family Mediation Council accreditation (FMCA) see also Training and regulation generally, 40, 43–45, 49–50 Family Mediation Council Board generally, 43–46 Family Mediation Project Ireland, 4, 59, 60 Family Mediation Scotland (FMS) generally, 80 Family Mediation Service (FMS) Ireland, 56–59, 60, 61, 66, 67 Family mediation services England and Wales business disputes within family, 303 future of, 19–25 generally, 12–14 quality assured, 308–309 Ireland, 4 Scotland, 80 Family Mediation Standards Board (FMSB) generally, 41, 43–49, 275 training and regulation in UK, 256 Family Mediation Task Force generally, 19, 46 Family Procedure Rules Practice Direction 3A see Mediation information and assessment meetings (MIAMs) Practice Direction 12A (Care, Supervision and Other Part 4 Proceedings: Guide to Case Management), 304 Practice Direction 12B (Child Arrangements Programme), 42 Practice Direction 12F (International Child Abduction), 204

G Gender and sexually diverse relationships see Sexually and gender diverse relationships

H Hague Convention on Parental Responsibility and Protection of Children 1996 generally, 6–7 Hague Convention on the Civil Aspects of International Child Abduction (1980) see also Child abduction cases generally, 6, 83 inclusion of children’s views in decision making, 182 I Impartiality see also Neutrality and impartiality generally, 282–283 losing, 187 maintaining, 16 perceived, maintenance, 280 principles, 194, 281, 332 questioning, 330 Reunite mediators, 213 understanding of, 169 Inheritance mediation see Family inheritance mediation Ireland conclusion, 68–70 development of family mediation, 56–59 Family Mediation Project, 4, 59, 60 Family Mediation Service (FMS), 56–59, 60, 61, 66, 67 family resource centres (FRCs), 59 introduction, 4 Irish family law and family life, 55–56 Law Reform Commission Report, 62, 70 Legal Aid Board, 57–59, 63, 64, 66, 67, 69 Mediation Act 2017, 4, 58, 61–68, 69 Mediation Council of Ireland, 4, 63, 68, 69, 70 Mediators Institute of Ireland (MII), 56, 69 ongoing research, 59–61 International child abduction see Child abduction cases L Law Reform (Parent and Child) (Scotland) Act 1986 orders as to parental rights (s 3), 77

342

Index Law Society of Scotland (LSS) generally, 80, 82–85, 88 Legal Aid Agency (LAA) generally, 33–34 international child abduction, 209 Legal Aid Board generally, 37 Ireland, 57–59, 63, 64, 66, 67, 69 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) generally, 1, 3, 14, 15, 19, 41–42, 152, 263 ‘unintended consequences’, 14 Legal Services Commission (LSC) generally, 38 Mediation Quality Mark Standard (MQM), 38 Lesbian, gay, bisexual, trans, queer or non-binary (LGBTQ+) persons see Sexually and gender diverse relationships Liberal frame mediation within, 14–19 M Mediation Act 2017 Ireland, 4, 58, 61–68, 69 Mediation Council of Ireland generally, 4, 63, 68, 69, 70 Mediation information and assessment meetings (MIAMs) attending appropriately qualified mediator, 40 funding, 14 generally, 13–14, 41 requirement, 13, 20 competence recognition, 40, 43 drop in referrals, 41–42 generally, 13–14, 15, 20, 34, 40, 42, 284 introduction of, 40, 217 requirements attending meeting, 13, 20 enforcing, 15 generally, 15 Reunite mediation process, 217 screening for domestic abuse, 322– 323 Mediator authority power, 150–151 Mediators Institute of Ireland (MII) generally, 56, 69

Medical mediation children, 307–308 Models and styles conclusion, 131 construal of mediation, 130–131 generally, 117–118 introduction, 5 model meeting style, 121–122 models, 118–119 styles, 119–121 N National Family Mediation (NFM) generally, 36–39 Neoliberal frame mediation within, 14–19 Neutrality and impartiality power and, 144–147, 149–150, 154 process ethics, 102–104, 108 Northern Ireland training and regulation in UK see Training and regulation O Onlookers ‘third party’, 128 P Power academic course in family mediation: features associated with family disputes issues of safety and power balancing, 284 sources of power imbalance, 284– 285 bargaining power, 141–143 conclusion, 154 domestic abuse, 151–152 early critiques of mediation, 143– 144 generally, 139 introduction, 5–6 meaning, 139–141 mediator authority, and, 150–151 neutrality and impartiality, and, 144– 147, 149–150, 154 new manifestations in family mediation, 152–153 theory and practice, and, 147–150 Pre-application protocol generally, 13–14 introduction, 13, 34, 40

343

Index Pre-application protocol – contd mediation information and assessment meetings see Mediation information and assessment meetings (MIAMs) Professional Practice Consultants (PPCs) challenges for mediators between training and accreditation, 264 Code of Practice, 42, 45 generally, 33–34, 38, 44 new approaches to gaining practice experience, 265–267 post-training requirements and challenges, 261–262 R Reconstruction in post-justice world conclusion, 25–26 fairness and justice generally, 11–12 meanings, 11 procedural fairness, 11 substantive fairness, 11–12 substantive justice, 12 family mediation services future of, 19–25 generally, 12–14 Family Mediation Task Force, 19 generally, 11–12 introduction, 3 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), 14 mediation within liberal and neoliberal frames, 14–19 possible future directions for mediation, 19–25 pre-application protocol generally, 13–14 introduction, 13 mediation information and assessment meetings see Mediation information and assessment meetings (MIAMs) Regulation see Development of regulatory framework for practice in England and Wales Relationships Scotland (RS) generally, 80–89 Research advances, 187–190

Research – contd findings, 286–287 ongoing, Ireland, 59–61 Resolution generally, 36, 38, 39, 48 number of members, 77 Reunite generally, 7, 203, 206, 207–209, 219 mediation process, 212–218 use of new technologies, 218–219 Rubberneckers ‘third party’, 129–130 S Scotland alternative dispute resolution (ADR), 81, 89–90 Certificate in Family Mediation (Accredited) (CFM(A)), 85 Certificate in Family Mediation (Registered) (CFM(R)), 85–86 Children (Scotland) Act 1995 generally, 77, 80, 81 parents, children and guardians (Pt I), 81 Civil Evidence (Family Mediation) (Scotland) Act 1995, 82–84 Comprehensive Accredited Lawyer Mediators Scotland (CALM), 80–82, 84–88 conclusion, 89–90 continuing professional development (CPD), 84–89 development of family mediation, 79–82 Family Law Association in Scotland, 77 Family Law (Scotland) Act 1985, 76, 78 Family Law (Scotland) Act 2006, 78 Family Mediation Scotland (FMS), 80 generally, 75 introduction, 4 Law Reform (Parent and Child) (Scotland) Act 1986, s 3, 77 Law Society of Scotland (LSS), 80, 82–85, 88 Lothian Family Conciliation Service, 186 political, legal and cultural setting, 76–79

344

Index Scotland – contd relationship between family mediation and civil justice system, 82–84 Relationships Scotland (RS), 80–89 Resolution, 77 Scottish Association of Family Conciliation Services (SAFCoS), 80, 82 Scottish Legal Aid Board (SLAB), 81, 83 Scottish Mediation Network (SM) generally, 82, 85, 89 Scottish Mediation Register (SMR), 89 training and regulation in UK see Training and regulation United Nations Convention on the Rights of the Child 1989, Art 12, 77 Screening see Child abduction cases; Domestic abuse Sexually and gender diverse relationships children in mediation generally, 238–242 United Nations Convention on the Rights of the Child 1989 (UNCRC) generally, 239–240 relevant articles, 239–240 conclusion, 242 generally, 227–229 introduction, 7 reshaping family mediation practices, 235–238 sexual orientation, gender identity and mediation, 229–235 Solicitors Family Law Association (SFLA) generally, 36 Status of child see Third parties Styles of mediation see Models and styles T Teaching family mediation in higher education see Academic teaching of family mediation Third parties conclusion, 131 construal of mediation, 130–131 generally, 117, 122–123

Third parties – contd introduction, 5 mediator, 123–124 other constituents inside and outside the room, 125– 126 taxonomy advocators, 128 alongsiders, 128–129 cheerleaders, 129 facilitators, 127–128 generally, 126–127 onlookers, 128 rubberneckers, 129–130 status of child child-inclusive mediation (CIM), 124–125 direct consultation with children (DCC), 124–125 generally, 124 Training and regulation achieving FMCA, 257, 267 challenges for mediators between training and accreditation generally, 263 lack of availability of practice experience, 264–265 Professional Practice Consultant (PPC), 264 College of Mediators, 255, 258 Family Mediation Council (FMC), 255–263, 266 Family Mediation Standards Board (FMSB), 256, 260 introduction, 7–8 journey from trainee mediator to FMCA finding right course, 259–261 generally, 259 post-training requirements and challenges generally, 261–262 Professional Practice Consultant (PPC), 261– 262 requirement to practise, 262–263 new approaches to gaining practice experience, 265–268 personal perspective, 251–252 Professional Practice Consultant (PPC), 261–262, 264, 265–267 purpose and standards in mediation training and practice, 252–254

345

Index Training and regulation – contd renewed approach to family mediation and implications, 310–312 United Kingdom current standards for England and Wales, 258 Family Mediation Council accreditation (FMCA) achieving, 257 generally, 257–258 understanding a confusing landscape, 256 other regulation and training, 258–259 understanding a confusing landscape, 254–256 Truth abuse, 165–167 assessing capacity, 167–168 conclusion: ‘in the beginning is the conversation’, 174–175 introduction, 6 mediation and communication in a global context, current climate, 162–163 mediation interventions generally, 168–169 mediator qualities discernment and exercise of judgement, 169–170 humility and courage, 170 process of mediation and its environment, 169 skills and strategies communication, 172 individual truths: listening, exploring, challenging, 170–171 language and metaphor, 172 past, present and future focus, 172–173

Truth – contd mediation interventions – contd skills and strategies – contd towards a shared truth: reframing, mutualising, questioning, 171–172 significance to mediators and their clients, 161–162 theories, approaches and models co-mediation, 174 narrative approach, 173 ‘therapeutic’ approach, 173–174 two ‘truths about truth’, 163–164 what world might learn from mediators, 164–165 U UK College of Family Mediators (UKCFM) generally, 37–39, 46, 275, 258 United Nations Convention on the Rights of the Child 1989 (UNCRC) access to appropriate information (Art 17), 240 freedom of association (Art 15),  240 freedom of expression (Art 13),  240 freedom of thought, conscience and religion (Art 14), 240 generally, 181, 182, 191, 239–240 participation and respect for the views of the child (Art 12), 77, 182, 239–240 right to education (Art 29), 240 right to identity Art 8 (Art 8),  240 V Voice of the child see Children’s involvement in mediation

346