This 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)
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.