Book Review: Family Mediation: Appropriate Dispute Resolution in a new family justice system

Sarah PhillimoreThis review is a guest post written by  Sarah Phillimore, barrister at St John’s Chambers, Bristol. Sarah joined St Johns Chambers in January 2011 from Coram Chambers in London. She has experience of all areas of family law and is training to become an accredited family mediator.

Family Mediation: Appropriate Dispute Resolution in a new family justice system, Lisa Parkinson (2nd Ed 2011)

Family Mediation

For about the last ten years I had seen myself as a particularly forward thinking and enlightened family lawyer, frequently holding forth about the potential benefits of mediation to resolve family law disputes. I was somewhat peeved to discover by page 4 of Lisa Parkinson’s text that I am several thousands years too late. She points out that Confucius in 5BC urged people to meet with a neutral peacemaker, rather than risk going to court which may leave them embittered and unable to co-operate.

 

It raises perhaps uncomfortable questions about human nature that the benefits of mediation have been recognised for thousands of years but for most of them we have clung to a largely adversarial family law system which encourages participants to think of themselves as ‘winners’ and ‘losers’.

 

Part III of the Family Law Act 1996 began to push at the door by requiring those who wanted public funding to at least consider the prospect of mediation (as re-stated in the Access to Justice Act 1999). More recently, the Government has made it very clear that active steps will be taken to encourage people to mediate due to the speed, cheapness and perceived better outcomes provided by mediation.

 

Lisa Parkinson recognises that a simplistic portrayal of mediation as ‘good’ and litigation as ‘bad’ is not fair to either system but the central message of her text is that disputants who risk being caught up in adversarial proceedings – at great emotional and financial cost – surely have a right to know the differences between mediation and litigation so that they can make an informed choice.

 

The need to understand the benefits and limitations of all systems of dispute resolution applies with equal force to family lawyers. Whatever our previous level of involvement or interest, it is now clear that there can no longer be much indulgence for continued  lack of curiosity about what mediation involves; whether we are toying with the idea of training as a mediator or simply wish to offer our clients clear advice.

 

At first glance, this text is not cheap at £75 but on a cost/benefit evaluation it is excellent value. It is wide ranging and very informative and should prove accessible and interesting for those who have very little prior knowledge of mediation as well as those who are more experienced and wish to build up or reinforce their existing knowledge. It provides explanation and discussion not just about the theory of mediation, but also how it operates on the ground, so that the aspiring mediator can get to grips with best practice in conducting the mediation itself.

 

There are 14 Chapters which examine the development of mediation and the different approaches involved across all domains of family law. I found it particularly useful for its analysis of the stages and skills of mediation, with many ‘real life’ examples of how the complexities of individual mediations played out. A chapter is devoted to ‘Dealing with Deadlocks’ which I anticipate I will return to many times to help me through out of court negotiations in particularly tricky private law disputes

 

There are a further 7 useful Appendices, including the Family Mediation Code of Practice and a template for a Mediation Agreement.

 

Any family lawyer with an interest in human nature, communication and how to mange conflict (which hopefully is all of us) should read this book.

 

This book is published by Jordans and can be purchased from their website.

More Mmmmmediation

There have been a number of comments on my previous posts about mediation which wonder about the economic and practical realities of the government’s model for mediation as the solution. David Jockelson of Miles and Partners took the time to contact me to share his views. He gave an interview on BBC News 24 programme recently, welcoming the general principle of mediation, collaborative law ADR etc but saying that this announcement was unexpected and premature in the light of the ongoing Family Justice Review. He was concerned that it was isolated from the wider reforms that might in fact make some progress in improving family proceedings and was in short an ill thought out, political, headline grabbing act. He also made the point that he had been e-mailed that morning by a chair of a mediation service saying they had not got enough mediators to deal with current cases let alone a flood of new ones starting in six weeks time.

You can view the clip on You Tube here: BBC News Clip – you tube or read a transcript below.

David has also sent me a copy of his excellent Submissions to the FJR panel – in which he makes some important observations, most notably for me identifying the significance of a system that is sufficiently fair and meticulous to enable parents to accept in many cases even the most devastating of decisions as justified and fair.

Thank you David.

Transcript of the interview:

I welcome the idea that there will be more mediation, conciliation and alternative dispute resolution but this is a very crude announcement that has come as a surprise. It has been jumped on us. It is not a part of the major change to the system which we hope will come out of the major Family Justice Review which now underway. There does need to be a culture change with lawyers and with the public as to what should be expected. But this is premature, isolated and it won’t be enough of itself. It is a headline grabbing, political announcement. It is true that some lawyers do shoot from the hip. Some lawyers do jump when their clients say be aggressive and some of the most famous firms who pay lip service to these ideals will sometimes actually issue applications while you are still in negotiations or almost before negotiations have started. There are ways of avoiding the damage caused in cases but it doesn’t mean that you necessarily cut out lawyers completely. There is a whole new ethos of Collaborative Law which involves mediation, sometimes therapists and counsellors and is very creative. That needs much more emotional intelligence and it can’t just be a constriction on going to court. It is a completely different issue from the one that you ran together with it in your last report which is the withdrawal of legal aid for actually going to court. Legal aid clients have always had to try mediation before they are allowed to go to court. Now everyone is going to have to try mediation or least approach it before going to court. But another separate issue altogether, the Green Paper, means that legally aided client will not actually be able to go to court. They will not be able to have their issues sorted out. Which means that the children of those families will not be protected by the court. They will be left to drift or their parents will be arguing things out in court themselves. How much more destructive is that? In some senses I welcome it but it is a crude isolated, headline grabbing, political announcement. The changes will come in six weeks time. There is not time to prepare for this. There are not even enough mediators. I got an e-mail from the chair of a local mediation service who said “I cannot get enough mediators to deal with the present load so where am I going to find enough mediators to deal with these compulsory ones?“. I am sorry but this is not well thought out.

Mediation Assessment

Mr Ministrio O Justice and Ms Accessa D Justice have been referred to this service following a breakdown of their relationship, for the purposes of a mediation assessment appointment. I have met with both parties and can report as follows:

  • There is a significant power imbalance as Ministrio is the sole breadwinner and Accessa is financially dependent upon him.
  • Mr Justice has been accused of serious acts of violence towards Ms Justice and there is concern that both she and the parties’ children (Litiganta and Citizen) are vulnerable and at risk of harm. The court may in due course need to make findings about this. There are clearly significant disputes of fact and interpretation that make progress very difficult.
  • Throughout our session Mr Justice found it very difficult to be positive about Accessa, and was unable to describe her without resorting to denigratory and belittling language. He was unable to acknowledge her contribution towards the relationship, financially or otherwise.
  • When attempting to discuss the issues with Ministrio the conversation had a tendency to become circular as Ministrio repeatedly sought to discuss the immediate financial issues, diverting the discussion away from the broader issues and the longer term consequences of any settlement.
  • Ms Justice is emotionally fragile and tells me that she is thinking of “giving up”. I am concerned for her welfare.
  • The relationship between the parties has (on Accessa’s account) been characterised by repeated attempts to bully and control Accessa.
  • Mr Ministrio Justice has adopted a very fixed view of what the outcome of  the process should be, and is unable to fully engage with the open and honest exploration of the issues that the mediation process depends upon. Mediation is unlikely to be successful unless both parties are ready to adapt their views and compromise.
  • There are serious and complex legal issues that we are unable to resolve through this process.
  • The communication between the parties is poor and trust is non-existent.

I therefore certify that in my professional opinion this case is not suitable for mediation.

Lucy Reed

Member of the Institute of (Made Up) Mediators