In honour of Family Mediation Week 2021, organised by the Family Mediation Council, Linda 1, Tanya 2, and I met Debbie Ross 3 from Bright Mediation UK for a Zoom coffee to discuss everything mediation…
The importance of considering non-court options
Debbie is the first to raise this imperative: keeping family cases out of the courts whenever possible. The recent Family Solutions Group Report entitled ‘What about me?: Reframing Support for Families following Parental Separation’ 4 emphasises the need to place children’s long-term welfare at the core of family justice. The report is welcome news to family law professionals who have been promoting this in their practice for years. Commenting on the report, President of the Family Division, Sir Andrew McFarlane, noted:
“It should be a matter of concern for society in general to achieve better co-parenting between separating couples. It is thought that about 40% of all separating parents bring issues about their children’s care to the Family Court for determination, rather than exercising parental responsibility and sorting problems out themselves.”
The report identifies the introduction of no-fault divorce 5 in 2021 as the ideal opportunity to reshape society’s views about separation and divorce, encouraging couples to view court as the last resort rather than the default method for resolving disputes. This is not to say that family courts are redundant, merely that court time should be used appropriately for issues involving domestic abuse or child protection.
A few weeks prior to the publication of the FSG report, Bristol-based family court judge Stephen Wildblood QC criticised parents for swamping courts with private law applications that could have been resolved via other pathways. Underlining the “unprecedented amount of work” facing family court judges, Wildblood endorsed the use of mediation and urged couples to settle their differences “away from court except where that is not possible” 6.
Pleas from judges to keep non-essential family matters away from the courts are rooted not only in a desire to reform society’s litigious habits, but from practical necessity. Courts are trying desperately hard to make the most of the resources available to them, but a system that was already crumbling before the pandemic is now beginning to crack. Due to the immense backlog of cases, files are being shuttled between courts wherever there is availability for matters to be heard. It is virtually impossible to contact certain family courts by phone (trust me, I have spent hours trying) and emails sit unanswered in inboxes for months on end causing confusion and anxiety for clients and solicitors alike. Online court hearings are also prone to chaos, with the wrong bundles being handed to judges and technical glitches blighting the proceedings.
Moreover, Judges are not necessarily well-versed in the area of law you need them to adjudicate on and the judge who oversees the initial appointment may not be listed for subsequent hearings, leading to a lack of consistency. That the court system has become something of a lottery makes the underuse of arbitration all the more bewildering. In arbitration, unlike court proceedings, parties are free to select their own arbitrator – someone who has the specialist knowledge to resolve their specific dispute. The same adjudicator oversees the process from start to finish and is at the disposal of the parties if there are any queries along the way. Arbitration can be used to make discrete decisions, with determinations being made swiftly and effectively, saving clients the time, money, and stress of protracted court proceedings. Unfortunately, as Tanya has discovered, the challenge does not lie in persuading clients of the merits of arbitration, but in convincing the solicitor representing the other party that arbitration is a viable option.
Indeed, there remains a huge disparity in the attitudes of family lawyers towards issue resolution. The shortcomings of the court system are exacerbated by the behaviour of a small minority of family lawyers whose tactics are to pour fuel on the fire, finding problems rather than solutions. The antagonistic methods employed by some family lawyers reinforce the public’s negative perception of the legal profession and, more distressingly, leave separating couples and their families in emotional and financial turmoil for years to come.
But there is hope. In Linda’s experience, the courts are beginning to spot obstructive tactics employed in certain quarters. A recent private children matter is a prime example of this. Acting on behalf of the applicant, Linda presented a range of potential solutions only to find every positive suggestion batted away by the solicitor representing the other party. Fortunately, the magistrates presiding at the hearing recognised the unhelpful attitude of the respondent’s legal team, awarding a ‘live with/live with’ rather than a ‘live with/spend time with’ order.
In light of the wide gulf in approaches, Debbie advises selecting a family lawyer with care, ensuring that the person who represents you is truly committed to issue resolution, keeping the interests of you and any children you might have at the heart of everything they do. A member of Sussex Family Solutions and ‘We Can Work It Out’ POD, Linda can attest to the growing number of professionals who, in line with the spirit of the FSG report, are committed to finding the best possible long-term outcomes for their clients. Bearing in mind that one size does not fit all, Linda recommends a toolbox approach: collaborating with a range of other people including counsellors, family therapists, independent social workers, psychologists, arbitrators and, of course, mediators to create a bespoke solution for clients.
Mediation: a positive step
First and foremost, how do you find a suitably qualified family mediator? Family mediators come from a diverse range of professional backgrounds (Debbie studied child criminology and previously worked in wealth management; Linda was a district nurse and community midwife before retraining as a solicitor), but the key is finding someone who is accredited. The Family Mediation Council website has an excellent search function enabling you to locate registered local mediators: www.familymediationcouncil.org.uk/find-local-mediator/.
Mediators listed on the FMC register have been trained to agreed professional standards, follow the FMC’s Code of Practice, maintain their professional practice by carrying out appropriate professional development activities, and are supported by a supervisor (they are also fully insured and there is a complaints process to follow if something goes wrong). There is also the option of refining your search to find family mediators, like Debbie, who provide mediation funded by legal aid. To find out if you or your ex-partner are eligible for legal aid, please use the online tool www.gov.uk/check-legal-aid.
In addition to the FMC website, there are many other helpful online resources about mediation (see ‘useful links’ at the end of this blog). The Family Mediators Association have produced a range of videos explaining how mediation might be able to help your family thefma.co.uk/about-family-mediation/videos-showing-mediation-works/ and the newly-released Family Mediation Week 2021 mock mediation video gives an excellent insight into what happens during a mediation session: www.youtube.com/watch?v=0hUo7Qqxr8Y&feature=youtu.be
As a Resolution accredited solicitor dedicated to pursuing a non-confrontational approach, Tanya values the difference that mediation can make to the lives of her clients. The MIAM (Mediation Information & Assessment Meeting) is the pivotal moment, providing parties with the opportunity to find out about the mediation process and other options for reaching agreements. By following the mediation pathway, families can resolve issues themselves rather than running the gauntlet of adversarial, lengthy, and expensive court proceedings.
An accredited mediator will facilitate important conversations about child arrangements and finances, supporting the separated couple to develop a good working relationship so that they can move forward in a positive way. The feedback that we receive from our clients is testament to the benefits of mediation:
“I…wanted to thank you for your involvement and patience when providing mediation… At times I have found the whole divorce very difficult to accept given the circumstances, but you have remained professional throughout and guided us along the way in an informed manner. I genuinely hope I never have to go through this again, but you have made a very bad situation easier to manage for both myself and [X], of which I am grateful”. LSL Family Law mediation client, November 2020.
It is not only clients and pro-issue resolution family solicitors who appreciate the importance of mediation within the family justice system. In his speech at the launch of Family Mediation Week 2021, Alex Chalk MP (Parliamentary Under Secretary of State in the Ministry of Justice) praised the mediation model, noting that over 70% of cases culminate in agreements between the parties. Whilst acknowledging that not all family matters are suitable for mediation, Mr Chalk asserted that “for those that are, it can offer a cheaper, quicker alternative to court proceedings which gives families the power to manage their own future” 7. The government’s endorsement of mediation is part of a drive to improve the lives of separating families by reducing toxicity and promoting the advantages of collective decision-making.
Mediation in the time of Covid-19
The Coronavirus pandemic and the subsequent lockdowns which have characterised the past few months have intensified pressure on families. How then, have mediators responded to the challenge of supporting families without being able to meet face-to face?
Fortunately, Linda and Debbie have both been able to offer uninterrupted mediation services thanks to their online mediation qualifications. Far from being a disadvantage, Zoom sessions have proved popular with clients since online appointments combine well with family commitments. Breakout rooms also enable mediators to practise shuttle mediation (i.e., speaking with one party separately from the other) when dealing with particularly sensitive cases. A similar technique can be applied during online hybrid mediation sessions, with the legal representative(s) of each party on hand to offer advice and guidance to their clients. Both Linda and Debbie agree that many mediators will pursue online family mediation in preference to face-to-face appointments when meeting in person becomes a viable option once more.
The one disadvantage of the online model, as Linda points out, relates to child inclusive mediation. For CIM to be effective, children need to meet independently with their accredited mediator to avoid succumbing to parental pressure, something that is almost impossible to achieve under the current circumstances. Children’s feelings and their versions of events can prove most enlightening, not to mention incredibly powerful, when relayed to their parents or carers (CIM sessions are completely confidential; at the end of the mediation session, children choose what, if anything, they wish the mediator to tell their parents).
Looking beyond the pandemic: what next for mediation?
With lockdown restrictions leading to a rise in domestic abuse and family breakdown, there is a greater need than ever to raise the profile of mediation and make it accessible to those who need it most. Not content with the status quo, Debbie is keen for mediators to innovate and be more outward facing, reaching out to communities through educational campaigns.
Participation in a new initiative called The Certainty Project is on the agenda for Linda. The Certainty Project combines mediation with arbitration to provide clients with the certainty of a set timeframe for resolving the issues. Having selected a family arbitrator (an expert in the area of law relevant to the matter) to manage their case, the couple then attends mediation. If all issues are settled in mediation, consent orders are submitted to the court and the process comes to an end. If there are any outstanding issues, the couple return to the arbitrator who makes a binding decision. The process is extremely flexible and is designed to meet the individual needs of couples and their families. Linda will be joining The Certainty Project as a mediator and a children arbitrator. We will be publishing more details about The Certainty Project as soon as the scheme is launched: watch this space!
It is not only mediators themselves who need to be proactive. Linda and Debbie are united in their plea for legal practitioners to promote mediation in a positive way. Family solicitors should encourage full participation in mediation rather than glibly directing their clients to a mediator to sign the MIAM form (thereby enabling a court application). The intervention of judges is also crucial. Sending separating couples back to mediation rather than allowing them take up valuable court time debating issues that they could resolve themselves (with appropriate support and guidance) would be a step in the right direction.
As if life was not uncertain enough at the moment, we are moving into partially unchartered waters now that the United Kingdom has left the European Union. What are the implications for mediators?
According to Linda, mediators need to be acutely aware of any elements of the law that have changed since Brexit. Mediators should not embark on cross-border mediation until the couple concerned have received independent legal advice or they have sought a joint report within the mediation process. Specialist international family lawyers who are also accredited mediators are likely to be in high demand in the months and years to come.
The potential for the growth of international mediation is a cause of considerable optimism, and, thanks to technology, geography is no longer an obstacle. The widespread use of video conferencing platforms means that it is just as easy to facilitate a mediation session with international clients as it is domestic ones – although careful scheduling is required due to time differences! Cross-border mediation may also be suitable for variations of the joint mediation model with mediators from each relevant jurisdiction representing the respective parties.
Phew! I think that just about covers our whirlwind tour de mediation! Many thanks to Debbie, Linda and Tanya for their time and expertise. For further information about mediation please see the ‘useful links’ below, the mediation section of our website, or contact us to find out how mediation could help resolve your family issue.
Business Support, LSL Family Law
- Linda Lamb is the director of LSL Family Law, an accredited family solicitor with Resolution, a children arbitrator, a collaborative lawyer, and an accredited family mediator with the Law Society and the Family Mediation Council. Linda is also qualified to provide child inclusive mediation and hybrid (solicitor-inclusive) mediation. www.lslfamilylaw.co.uk/meet-linda-lamb/
- Tanya Foster is a consultant family lawyer at LSL Family Law. An accredited family solicitor with Resolution (specialising in private children law and financial provision) Tanya advocates non-court pathways to her clients whenever possible. Tanya hopes to embark on the first stage of her family mediation qualification in 2021. www.lslfamilylaw.co.uk/meet-tanya-foster/
- Debbie Ross is an accredited family mediator, a member of Resolution and of the Family Mediation Council and has recently started work as a Separated Parents Information Programme presenter for the family courts and CAFCASS. Bright Mediation UK are accredited by the FMC in all issues (children, finance, and property) and offer mediation for those who qualify for legal aid. Contact Debbie: firstname.lastname@example.org