Monday, 24 November 2014

Family Mediation – Booming Marvellous?

To mark National Family Resolution Week Mumsnet Hackney is hosting a sponsored article by Family Mediation specialist Amina Somers who is also answering your questions in our week long Q&A. If you would like to post a question to Amina please just click here. 

The Children and Families Act 2014 encourages separating couples to resolve their disputes outside of court, including using mediation.

In April 2013, in line with this policy, the government removed legal aid for family disputes (with limited exceptions) but retained legal aid for family mediation. 

So has there been an increase in referrals to family mediation?

Anecdotal evidence from mediators suggests not.

According to The Family Mediators Association’s Legal Aid Survey there was a 53% decline in claims made for legally aided mediations between April 2013 and December 2013 compared to the same period in 2012 - 53% less (legally aided) mediations.

While mediators have criticised the government for failing to publicise that legal aid remains available for mediation are there more fundamental reasons why separating couples are not mediating?

Signposting Family Mediation

Mediators have lobbied the government for a televised public awareness campaign. Government has not been receptive having high expectations that the revamping of the Family Mediation Council website, to which all forms of signposting and promotional activity will be directed, will significantly improve public awareness of family mediation.

Difficulties in understanding why mediation works

Most disputes involve a difference in perception - the relationship has broken down but each party’s perception of the situation, how it happened and what should happen next, is different.

In disagreements these different perceptions are advanced, protected or defended by each party. Thinkers like Edward de Bono (1985: Conflicts) believe it is almost impossible for a party in the dispute (or his legal adviser) to change or shift their own perceptions by themselves.

This is also why neither the parties (or their legal advisors) are best placed to design a solution to their own problem and why De Bono says they need a third party – like a mediator - to help them. Otherwise the thinking employed by the disputing parties will remain the same.

The mediator is free (of these perceptions) to suggest ways of reconciling different perceptions by either finding common ground or by designing new perceptions that both parties can buy into.

Fear as a basis for refusing to mediate

A party’s own belief as to what will “really” happen during the mediation process may impact considerably on whether to mediate.

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

So it is easy to understand why a party to a dispute will want both someone to “protect” them and “advocate” for them ie a lawyer.

Where there are such fears it will be difficult to contemplate mediation.

Skilled mediators should be able to uncover these fears, deal with them directly or suggest pre mediation support before mediation begins.

Choosing a mediator

Mediators come from different professional backgrounds e.g lawyers, social workers and psychotherapists.

Good mediators have a good understanding of what enables people to reach agreement, an inventive solution focused mind, empathy and determination. After all they encounter the most challenging of human behaviour at what is often one of the lowest points in the lives of their clients.

When choosing a mediator:

  • Both parties should have trust and confidence in the mediator and speak to the mediator before appointment; shortlist 2 or 3 mediators for this purpose.

  • Think about whether or not the mediator sounds like someone you can work with.

  • Ask the mediator questions about their approach to conflict resolution i.e how they deal with impasse or high conflict situations.

  • Consider the issues and level of conflict. In high conflict cases mediators from a therapeutic background might be useful. In complex and high conflict cases two mediators with complimentary backgrounds (legal/therapeutic) may be appropriate.

  • Consider pre mediation support that focus’s on expectations in mediation, explores fears and beliefs that affect the party’s confidence in the process and ways of managing unhelpful emotional responses.

  • ask whether the mediator works with different mediation models ie shuttle mediation where the parties do not wish to sit in the same room as one another.

  • Check the mediator’s availability - a mediator who has another professional role may need to have longer gaps between appointments.

  • Establish whether the mediator offers legal aid if you think you might qualify.

  • If you like a particular mediator but cannot afford the level of fees - negotiate on fees.

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

 Amina Somers consults with specialist family law firm Goodman Ray, is a Solicitor (non practising), Mediator and Therapeutic Counsellor.

© Amina Somers 2014

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