Mediation: A sensible alternative in circumstances of family breakdown?

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1 Mediation: A sensible alternative in circumstances of family breakdown? Helen Harper 1

2 Introduction On 16th July 2012, I set off from London Heathrow to spend 7 1/2 weeks in America. I landed in LAX full of nerves, excitement and anticipation. After spending the weekend acclimatising, I jumped on a train to Orange County to begin my visit to the Lameroux Justice Centre and to various family law attorney offices throughout Orange. Thereafter, I traveled to San Diego, LA, San Francisco and San Jose spending time with Judges, attorneys and mediators in each location. Following this, I travelled to the East Coast and spent two weeks in Washington DC seeing how their family justice system compared to the West Coast and the UK. Outline itinerary: a. 16th June - arrived at LAX a. 18th - 23rd June - Orange County (Lameroux Justice Centre; Minyard Morris; Philips, Whisnant, Gazin, Gorczca & Curtin; Centre for Children and Family Law) a. 23rd - 29th June - San Deigo (San Diego Family Courts (various locations); San Diego Social Services; Trevor Flynn) a. 29th June - 3rd July - LA (LA Superior Court Family Division) a. 6th July - 13th July - San Francisco (San Francisco Superior Court Family Division; Len Edwards) 2

3 a. 13th July - 18th July - San Jose (San Jose Family and Dependancy Courts) a. 18th July - 1st August - Washington DC (DC Superior Court; Dr Lisa Herrick; Ellen Kandall; Carl Schneider and Eileen Coen; Paul Scmollar; Meg McKinney; Mulitdoor; John Spiegel; Children Law Centre) Issues The main questions I hoped to address during my fellowship were: 1. Which situations are best suited to mediation? 2. How best to persuade families that mediation is a good option for them? 3. How best can mediation services be organised to ensure that the outcome is effective for families involved? 4. Do lawyers make particularly good mediators? Or particularly bad ones?! 5. Who does make a good mediator? 6. What safeguards can be employed by mediators to identify risks within families such as power imbalances between the parties? 3

4 Summary of conclusions Mediation is a widely understood and utilised concept in the USA and it is an extremely useful option available to many families going through family breakdown and problems. It does not work for all families but it is far more versatile than I had previously understood. In my view, if general awareness of the concept of family mediation was to increase in the UK, it would be an extremely positive move as disputes resolved through agreement rather than imposed upon parties are known to be far more acceptable to those involved and are also known to be more likely to endure. However, not all disputes are susceptible to agreement and not all interpersonal relationships are capable of structured discussion. Mediation will never be a replacement for due process via a court system but will be a much better option for a lot of cases that currently find themselves in the court arena. 4

5 Project purpose In the UK, family law children cases are divided into two categories; Public Law and Private Law. Public Law cases involve a public body and are generally child protection cases where a Local Authority is seeking to remove a child from their family. Private Law cases are generally disputes between family members regarding decisions about a child. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 was passed in May One of the main purposes of the Act was to restructure the provision of legal aid, with the intention of significantly reducing the number and scope of cases eligible for legal aid, thereby saving money from the public purse. One of the main results of this is that from April 2013, the majority of private law cases will fall outside the scope of legal aid. There is expected to be a significant number of people who will be ineligible for Legal Aid yet unable to afford to pay for representation. It is thought that this will lead to a huge increase in the number of litigants in person. The Government have stated their commitment to providing funding for mediation services. The exact details of how this will be arranged were not available at the time of writing this document. Background to mediation Mediation in a voluntary process aimed at facilitating structured conversation to enable people to resolve their disputes. Mediation is confidential and future focussed. Family mediation traditionally involves just two people, usually the child s parents, however, mediation is flexible and can adapt to suit those with different roles in a child s life (such as siblings, grandparents, foster carers etc.) and can also accommodate more than two parties. 5

6 All parties attending the mediation have to voluntarily agree to participate in the process and everyone must feel able to speak openly and honestly. This is one of the main reasons why the process of mediation is confidential; matters discussed in mediation are not to be used in the future as leverage for negotiation nor for litigation advantage. The only non-confidential aspect of the mediation process is the final agreement reached (with the exception of rare situations where there are significant welfare concerns that require the involvement of protective agencies). 6

7 Situations most suited to mediations Those participating in mediation need to feel physically safe and emotionally able to voice their thoughts. For mediation to work, both parties need to have a desire to reach a solution to their problems and to do this, they need to be able to be forward looking rather than seeking to attribute blame for past circumstances. In family breakdown, a lot of the decisions to be taken involve securing the welfare of the parties children, so the parties need to be able to focus on the needs of the children. Sometimes parties may need to take some time before they can engage in mediation. If the relationship breakdown is too recent, one party or the other may be experiencing transient emotions such as hurt, lack of self-esteem, guilt, anger, fear etc. which can impact join their ability to make good long term decisions. However, in such situations, parties can often make short term decisions regarding interim arrangements to get them through the immediate weeks/months until they are able to contemplate long term solutions. Domestic abuse is often thought of as a bar to mediation. However, it is a factor that is managed well in the USA by the use of shuttle mediation. Shuttle mediation involves the parties sitting in separate rooms with the mediator traveling between the two trying to assist them in narrowing the issues between them and reaching an agreement. Making findings of fact about the past is not a function of mediation. If the parties dispute the existence or level of domestic abuse, it is not something that can be determined in mediation. The parties need to be forward focussed and see if they can agree on the type of contact that would be best for the children in the circumstances, or agree on steps to be taken to get the parents/children to an appropriate psychological or physical state for future contact. If the parties are too far apart and fixed on their proposals then cases will not resolve at mediation. Mental health problems and drug addictions are other factors that can be problematic. however, the view of all the mediators I met with was that so long as these are not current problems impacting upon that particular party s ability to enter into considered discussions, they need not be a bar to mediation. As with domestic violence, the parties different perceptions of the situation may mean that their positions are too polarised to make mediation a viable option. 7

8 It is rare that the factual circumstances of a family will make the case unsuitable for mediation. However, the views and personalities of the individuals may make a case impossible to resolve. How to persuade families that mediation is a good option In America, the concept of mediation has been firmly within the public domain for many years and generally parties are aware of the availability of mediation. Unlike in the UK, mediation as a concept has grown gradually by recommendations and referrals taking place over a number of years. Hearing of others successful experience is the best way to encourage people to try it. However, mediation also has numerous other selling points: the people making the decisions know the children involved better than any Judge could; it costs less than litigation, both financially and emotionally; the parties have more control over the process; mediation can consider individual factors in far greater detail than a Judge can (such as finer details of hand overs, diet, after school activities, behaviour management). It is my view that the public need to have further exposure to mediation and to be educated about the benefits of it. How best can mediation services be organised During my trip I was fortunate have spent time with both court-based and private mediators. Court based mediation All the court centres I visited offered compulsory mediation within the actual courthouse. I was incredibly impressed by the standard of the mediators and the mediation programmes that I observed. Notably, these programmes were free to all, regardless of their means. California: The exact services offered differed slightly from location to location but in most aspects they were very similar. Mediation is compulsory for all parties involved in family proceedings. Mediation was restricted to matters involving children rather than the financial aspect of family 8

9 breakdown. All parties had to attend an introduction program at the outset of proceedings, such programs were divided into one group for applicants and another for respondents. Many courts offered this course on the day of the first hearing. The courses were generally about 2 hours long and were run by the mediation team. The aims of the course were to provide parties with information about the court process generally, educate the parents about the different needs of children following relationship breakdown and also to prepare them for the mediation process. Most courses included the use of a short film of children giving their perspective on their parents separation, such as which things they found difficult and which things were easier and why. All parties left the course with a substantial booklet confirming the information they had been given. The booklets also contained worksheets to assist the parents in preparing for mediation, e.g. lists of annual bank holidays etc. with space to mark the level of importance that each holiday had for each parent and each child; spread sheets to enter information regarding each child s hobbies and interests and which parent is currently (or could in the future be) the most appropriate to assist the child in relation to each activity; blank calendars so that various different contact plans could be tested to see how each would look once implemented. After attending the initial meeting, the parents are either given a date to come back for a mediation appointment, or they are invited to come to a mediation session the same day. Most mediators felt that it was good to strike whilst the iron is hot and have a mediation straight after the introductory programme when the parents would hopefully be in a very child-focussed frame of mind. The number of subsequent mediation sessions offered differed from location to location, with some offering up to five and others offering an unlimited number. When an agreement is reached, the mediator will write up the agreement, the parents will sign it and the mediator will then draft a consent order to be endorsed by the court. If agreement is not reached, under strict mediation rules, the court is not told any details of the discussions. The court is then seized of the matter in the usual way and one of the tools available to the court will be to instruct someone to do an investigation of the family, funded by the parties and usually conducted by an independent expert (such as a psychologist) - in some states the court also has the option to ask a member of the mediation team to conduct such an investigation and if the court decides to do this, the mediator who previously worked with the family cannot be the investigating mediator. In some areas, the courts only provide recommending mediation. This means he mediator is permitted to report back to the judge following an unsuccessful mediation and give a 9

10 recommendation. It is widely accepted that this is not strictly speaking 'mediation' due to the lack of confidentiality. It is argued that participants in such mediation do not enter into it as freely as they might otherwise do so. However, the benefit of it is that when agreement is not reached, the court often need not take the further step of ordering a family investigation, as the judge will already have the relevant information from the mediator. Court-based mediators in California are fully qualified, licensed mediators. There is a prerequisite that prospective mediators have at least five years experience working within a related field, such as mental health or social work. The success rates from court-based mediation is high - I was not able to get an exact figure but all areas estimated that between 60-85% of couples attending court were able to resolve at least some of their disputes during mediation. Washington DC: Mediation is compulsory. Generally, if no agreement is reached at the first hearing, the court will refer parties to Mulitdoor, which is a court based service. However, there are some parties who may, if they are both paying lawyers to represent them, decide to request a referral to privately paying service called ARD Facilitators Program instead - however, this only applies to the minority of cases. Mulitdoor provide an orientation program for parents at the court on alternate Saturdays from 10am-1.30pm. Parties are requested to attend the same programme unless there are safety reasons to prevent them from doing so. The reason for this is that the programmes are interactive and it is felt important that each parent hears the same thing at their orientation session. These programmes are run by a team of psychologists (at least one of each sex). The court also provides complimentary courses for children at the court at the same time. This obviously allows the parents to attend at their orientation programme, but it also allows for the children to interact with others going through similar experiences. The children's courses are also run by psychologists. The content of the Mulitdoor programme is similar to the orientation programmes in California. Parents must attend the programme before going to mediation. In Washington DC there is a vast appetite for pro bono work. The court-based compulsory mediation sessions are run by volunteers. The court will provide mediation training for those volunteers and the training is to a very high standard. Consequently, when the court advertises for new mediators they usually receive in excess of 10 applicants for each vacancy. The quality of the 10

11 mediators is very high. Parties are offered up to five sessions of two hours. All issues mediation is offered, so mediation is not just limited to issues surrounding children. Darrell Hale, the manager of Multidoor, estimated that at least 40% of all cases referred to Multidoor result in all issues being agreed. Mediation via Multidoor is confidential. Any agreement is incorporated into a consent order and submitted for judicial approval. If no agreement is reached, the case is returned to court and proceeds in the usual way. Non-court-based mediators I spoke with two independent mediators and one attorney mediator in California and I met with six independent mediators and two attorney mediators in Washington DC. Attorney mediators: All the attorney mediators I met were also in private practice in the area of 'high net value' family cases and their mediation practices were additional to their main occupations as family law attorneys. They all felt that mediation was a good option but that for those with a lot of assets, there was considerable need for professional advice and input regarding the division of such assets. Therefore, when high net value parties were attempting to avoid the traditional court route, collaborative law was generally more suitable than mediation. The attorney mediators I met in Washington DC were also part of the ADR Facilitators Programme which is available to legally represented couples and is more similar to arbitration or private judgment rather than mediation. Independent mediators: Of the independent mediators I met, most had previously been lawyers or had co-mediated with lawyers. Some worked as solo practitioners whereas others had worked in a team of two or three. The general consensus was that it was possible to find work as a mediator but that it was increasingly difficult. The reason for this is that mediation is so useful that many free services are now available (such as the court-based services) and also those with the ability to pay for collaborative law are choosing this option with increasing frequently. 11

12 Who makes a good mediator In California, one needs to have a social work and mental health background to even be considered as a court based mediator for children issues. Of the independent mediators I met, many were lawyers or had co-mediated with lawyers. There are no formal requirements in America or in England for mediators to have any professional qualifications. However, it is clear that those with an understanding of the emotions that often accompany family breakdown, knowledge of the psychological needs and development of children and an understanding of the rules surrounding the division of assets, will be best placed to be good mediators. Safeguards The majority of the mediation services I visited relied upon the parties self-reporting safeguarding issues (although the courts are able to conduct limited searches to see if there are restraining orders in place). The private mediation services were sometimes limited by their facilities, but otherwise most safeguarding concerns could be met by co-mediating and shuttle mediation (where the parties mediate from different rooms). Mediators are compelled to report serious safeguarding concerns to social services or the police. In the UK, there has been significant concern that the court may never get to identify safeguarding concerns when parents represent themselves. In such situations, compulsory mediation offers a further strata of safeguarding for the subject children when their parent s separate. Opinion As previously stated, I am firmly of the view that family mediation is something that should be considered a welcome addition to the toolkit available to families who are in dispute. In the UK it will be particularly important for mediation to be readily available to those who cannot afford legal representation. In my view, offering a service directly from the court would be the best 12

13 way to do this. However, in the absence of this, steps should be taken to raise people s awareness of mediation generally and to promote the availability of private independent mediators. Helen Harper November

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