A Third Way

Helen Keville is a family mediator with Mediation in
Divorce in Twickenham, Greater London. Qualifying as a family
mediator in 2000 brought together her interests in family work and
facilitation.  She has 21 years’ experience working in social
services departments as a social worker and training
manager.

The government’s determination to divert most child contact
disputes from court was emphasised earlier this year with the
publication of a green paper outlining measures to support more
parents in reaching informal contact arrangements with each
other.(1) Recognising family mediation’s role in resolving
disputes, the proposals include a review of judicial rules so “the
strongest possible encouragement is given to parties to agree to
mediation”.(2)

Family mediation offers a realistic alternative to the adversarial
approach of the law: a private, confidential forum where parents
can negotiate with each other about residence and contact
arrangements for their children, and reach a financial settlement
covering the family’s needs.

The UK College of Family Mediators defines family mediation as a
process where an impartial third party helps those involved in
family breakdown “to communicate better with each other and reach
their own agreed and informed decisions concerningÉchildren,
property or finance”. The potential contribution of family
mediation to divorce settlements in the UK was recognised in the
Family Law Act 1996. A key principle of the legislation was that
marriage should be brought to an end “with the minimum distress to
the parents and children concerned, focusing on promoting as good a
continuing relationship as possible”. This principle is developed
in the green paper with its use of a framework that states “a
child’s welfare is best promoted by a continuing relationship with
both parents, as long as it is safe to do so”.(3)

It is estimated that 28 per cent of children will be affected by
divorce by the time they are 16.(4) Family mediation places the
needs of children at the centre of the plans parents make when they
separate. Relationship breakdown often results in poor
communication, with former partners locked in a downward spiral of
anger, hurt and mistrust. Factors such as substance misuse, mental
health problems and debt intensify the stress they experience.
Family mediators are facilitators who create a calm,
non-judgemental environment. They use their neutrality to encourage
former partners to rethink their perspectives and plan how they
will work together as parents.

Each former partner must be an equal, voluntary participant. The
process starts with each person speaking confidentially to the
mediator to describe events from their own viewpoint. To create a
safe environment, the mediator uses the initial meeting to find out
whether there is a history of domestic violence or entrenched
patterns of intimidation that would prevent one partner expressing
their needs in front of the other. The mediator must also assess
whether either partner is affected by a disability, language
difficulties or mental health problems.

The mediator aims to manage the sessions in a way that
encourages each ex-partner to feel an equal participant in a safe
process. This can include arranging interpreters, signers and other
supports. But mediation is not always suitable. If patterns of
intimidation or the consequences of mental or physical disability
disadvantage one of the partners, the mediator will end the work,
allowing referral to alternative services early in the process.

The mediator’s main goal is to promote constructive
communication between parents. Ground rules may be introduced so
that ex-partners take turns to speak and listen to each other and
permit the mediator to intervene when conflict and blame take
discussion away from its objectives. Mediators provide a framework
by prompting ex-partners to think about the joint plans they need
to make for their children, or guiding them through the financial
information they need to disclose. They encourage parents to
develop and evaluate different options until they find the solution
that is most suitable for themselves and their circumstances.

Family mediation allows ex-partners to negotiate directly with
each other, but it is not a substitute for expert legal advice.
People in mediation are always encouraged to seek legal advice so
that they are aware of their rights and can judge what they have
negotiated. The most common agreements reached by parents in
mediation are called parenting plans for child-only issues, or a
memorandum of understanding when the agreement includes a financial
settlement as well. These can be made legally binding by a
solicitor.

An Office of National Statistics survey has suggested that,
where contact arrangements did not involve the courts, nearly 90
per cent of non-resident and 80 per cent of resident parents were
satisfied with the arrangements.5 Research supports the view that,
if parental separation is handled well, any adverse impact on
children can be minimised.6 Former partners who reach agreements
through family mediation remain in control of the decision-making
about their family’s future. Most importantly, they have a chance
to find their own solutions to the dilemmas of fairness and justice
faced by all separating couples.

CASE STUDY:

Jenny and Anthony*, both 22, came to mediation following
Anthony’s release from prison after serving three years for arson
and criminal damage. They had sons, aged four and three, but their
relationship was stormy due to Anthony’s heroin addiction.

While Anthony was in prison, he accepted treatment for his
addiction and was discharged to a drug rehabilitation programme.
Jenny had started a new relationship and had given birth to a
daughter. They no longer wanted to be a couple, but Anthony said he
had “grown up” in prison. He had undergone counselling to face up
to the causes of his addiction and now wanted be a better father to
his sons.

Jenny was willing to try mediation, because she thought it was
important for her children to have contact with their father, but
she was concerned that Anthony would take them to places where
drugs were being used.

With a mediator facilitating communication, this did not lead to
an argument as in the past. Instead it gave Jenny a chance to
listen to Anthony as he described the support he had in his
rehabilitation programme to help him stay away from other drug
users and establish a new lifestyle.

Prompted by the mediator, they recognised that the boys needed
time to get to know a father they could not remember. They drew up
a parenting plan, which started with Anthony taking the boys on
short, regular outings to the park, accompanied initially by Jenny.
Once they were familiar with him, he planned to take them to an
aunt’s house nearby for a few hours. Overnight stays would not be
an option for several months as Anthony was living in a hostel and
they intended to discuss this in mediation later.

In the plan, they decided how they would communicate with each
other about the arrangements for contact without intruding
unreasonably on each other’s lives and what safeguards they had if
either of them did not keep to the agreement.

* Not their real names

ABSTRACT

With the recent publication of a green paper proposing measures
to promote a non-adversarial approach to resolving contact
disputes, this article considers the role of family mediation. It
describes how parents can engage safely in the mediation process
and the strategies used by mediators to improve communication
between separated parents. It concludes by explaining the likely
outcomes of mediation for children and parents.

REFERENCES

1. HM Government, Parental Separation: Children’s Needs and
   Parents’ Responsibilities.  Available from www.dfes.gov.uk/childrensneeds.
    Consultation closed 1 November 2004
2. HM Government, as above, p24
3. HM Government, as above, p7
4. The Department for Constitutional Affairs, The Government’s
   Response to the Children Act Sub-committee (CASC) Report “Making
   Contact Work”, p2, 2004. Available from www.dca.gov.uk
5. The Department for Constitutional Affairs, op. cit., p3
6. See for example Carol Smart, and Bren Neale, Post Divorce
   Childhoods: Perspectives from Children, 2000, Centre for Research
   on Family, Kinship and Childhood, University of Leeds

FURTHER INFORMATION

UK College of Family Mediators: www.ukcfm.co.uk

National Family Mediation: www.nfm.u-net.com (England and
Wales) or www.familymediationscotland.org.uk (Scotland)

Family Mediators’ Association: www.fmassoc.co.uk

Joseph Rowntree Foundation: www.jrf.org.uk.  Findings include
research into the effectiveness of mediation and the impact of
separation on children.

CONTACT THE AUTHOR

admin@mediationindivorce.co.uk

BOXTEXT: Helen Keville
is a family mediator with Mediation in Divorce in Twickenham,
Greater London. Qualifying as a family mediator in 2000 brought
together her interests in family work and facilitation. She has 21
years’ experience working in social services departments as a
social worker and training manager