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

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