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 2014