Family Mediation

Appropriate Dispute Resolutionin a new family justice system

Second Edition

Lisa Parkinson

Neil Robinson, Editorial Consultant

Family Law

CONTENTS

Dedication vForeword viiPreface ixAcknowledgments xi

Chapter 1Mediation and the Management of Conflict 1The need for peaceful ways of resolving conflict 1Defining mediation 2Mediation - origins and development 4Family mediation - development in England and Wales 5Government policy on family mediation 8Mediation and litigation 8ADR - Appropriate Dispute Resolution 10

Negotiation, arbitration, collaborative law, conciliation,mediation - how do they differ? 11

Direct Negotiation 11Indirect negotiation via representatives 11Arbitration 11Collaborative law 12

Conciliation and mediation 12The aims and objectives of family mediation 14The boundaries of family mediation 14Core principles of family mediation 15

Voluntary participation 15Confidentiality 16

Confidentiality in relation to the court 17Impartiality 19Party control of decisions 21

Further principles 21Personal safety and the suitability of mediation 22Respect for individuals and cultural diversity 23Present and future focus 23Consideration of children's needs, feelings and views 23Mediator competence 24

Distinguishing family mediation from counselling and therapy 25Distinguishing family mediation from advising as a lawyer 27The aim of mediation - settling disputes or resolving conflict? 29

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Turbulence, change and mediation with changing families 30Chaos theory 31The evolution of family mediation as a new professional

discipline 32Family Justice Review 33

Chapter 2Different Approaches to Mediation 35Different approaches to mediation 35Structured mediation 36Transformative mediation 39Narrative mediation 42Ecosystemic, family-focused mediation 44Mediating with families in transition 48Ecograms 49Main principles of an ecosystemic approach to family mediation 51Connections between family systems and other systems 52Attachment and loss 54Cross-cultural mediation 57Mediation - science or art? 57Different facets of the mediator's role 60

Chapter 3Considering Family Mediation 63The paradox of family mediation 63Is early mediation inadvisable? 64Mediating in crisis situations 65Ambivalence about ending relationships 67Triangulation 68Family mediation and cultural diversity 69Consideration of mediation prior to family law proceedings 70Mediation and legal aid 72Scope of family mediation 72Mediation information and assessment meetings 73Assessing the suitability of mediation 76Defining domestic violence and abuse 77Links between domestic violence and child abuse 78Screening for domestic abuse and child protection issues 79

Ongoing severe battering by the male partner 80Violence associated with psychotic and paranoid reactions 81Interactive violence used to provoke reactions and gain control 81Violence by women against men 81Abuse associated with separation 82

The need for safeguards 82Other circumstances needing careful consideration of suitability 83'Conversion' from information and assessment meetings to

mediation 84

Contents xv

Referral to mediation at any stage of legal proceedings 85Prior to court application 85Court referral to mediation, prior to court hearing 85Adjournment of proceedings for referral to mediation 86Mediation following court proceedings 87

Chapter 4Designing Mediation Models 89Some general considerations 89Setting and facilities 90The mediation room and seating arrangements 91Gender issues 92Co-mediation 92

Advantages of co-mediation 93Balance 93Scope for wider perspectives and different points of view 94Dynamics 94Support for mediators 94Complementary styles and skills 94Gender balance 94Cross-cultural balance 94Modelling 95Maintaining good practice 95

Potential disadvantages of co-mediation 95Cost 95Logistics 96Time 96Competition or confusion 96Becoming split, taking sides 96Combined pressure 97

Interdisciplinary co-mediation 97A wider range of expertise 97Mediating on inter-related issues 98Greater creativity 98

Different models of co-mediation 98Co-pilots 98Pilot and Navigator 98Pilot and Apprentice 99Pilot and Controller (Advanced Flying Test!) 99Strategies and skills in co-mediation 99

Consulting openly 99Picking up on non-verbal signals and pre-empting 99Giving information 99Strategic debates 99Using humour to reduce tension 100Brainstorming 100Drafting written summaries 100

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Pre-requisites for effective co-mediation 100Trust your co-mediator 100Consider professional and practice issues 100Training for co-mediation 101Agree roles and tasks 101Agree whether both mediators are equally in charge, or

whether one is apprenticed to the other 101Give each other openings to join in discussion 101Understand each other's views and values 102Mutual support 102Speak the same language 102Preparation and debriefing 102Have a fallback plan 102A good sense of humour 102Consider practical details 103Use a consultant or supervisor 103

The synergy of co-mediation 103Shuttle mediation and caucusing 104Confidentiality in shuttle mediation and caucusing 105Considering whether to caucus 106

Potential benefits 106Potential disadvantages 108

Shuttling at a distance 109Widening the scope of family mediation 110

Mediation with extended families 110Intergenerational mediation 111Mediation concerning children in care 112Mediation in adoption and post-adoption support 114Mediation involving people with disabilities 114Mediation in inheritance disputes 115

Legal advisors and mediation 115Merged Family/Civil Mediation 117A model for designing the mediation process 117

Chapter 5Stages and Skills in Mediation 119Different dimensions of separation and divorce 119Stages of family mediation 120

Stages 1 and 2: Engaging people in mediation 121Stage 3: Defining and clarifying issues for mediation 121Who speaks first? 122Acknowledging feelings and concerns 122Stages 4 and 5: Agreeing the agenda, prioritising and planning 123Should ground-rules be set at the outset? 124

Conflict management 124Patterns of communication and conflict 126

Co-operative couples 127

Contents xvii

Conflict avoiders 128Example 129

Angry couples 129Business managers 130

Example - disagreement over possessions 130Semi-detached - apart, but not fully detached 131

Example 131Projected conflict 132

Example 132Sea anemones and limpets 133Feuding couples 134

Time management 135Tasks and skills in the opening stages of mediation 136Limitations of staged models 137Circular movement in mediation 138Combining process management, interpersonal and

problem-solving skills 139

Chapter 6Language and Communication 141Communication 141Active listening and centred posture 142Non-verbal communication 143Silence 143Tension, stress, suppressed anger 143Couples who argue without listening 144Conflicting versions of 'the truth' 145Asking questions 145

Present-focused questions 146Past-focused questions 147Examples of past-focused questions 147

Different types of questions 148Thinking about the function of questions 148

Opening questions 149Information-seeking questions 149Negotiating questions 149Reality-testing questions 149Option development questions 149Questions to clarify priorities and facilitate communication 149Reflective questions 149Hypothetical questions 150Circular questions 150

Functions of different kinds of questions 151Filtering out negatives 151Using straightforward language 153Language or hearing difficulties 153Gender conditioning in the use of language 154One-upmanship 154

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Encouraging people to speak for themselves 155Acting as referee, keeping the ground-rules 155Repeating and summarising 155The mediator as interpreter 156Framing and reframing 156How does positive reframing work? 157

The pace and timing of reframing 158Messages and metamessages 158Punctuation 159Images and metaphors 159

Territory, middle ground 159Journeys 160Bridges 160Elastic 161Jigsaw puzzles 161Doors and keys 162Trees 162Water and rivers 163

Chapter 7Child-Focused Mediation 165Children and separation 165Parenting Information Programmes (PIPs) 167Parental conflict and children's adjustment 167Possible reactions at different ages 169

Pre-school children (2-5 years) 169Primary school age (5-7 years) 169Middle school (8-12 years) 170Adolescents (13-18 years) 171Young adults (18 upwards) 171

Children's adjustment to parental separation 172The Children Act 1989 and continuing parental responsibility 173Parenting patterns and cultural diversity 174Maintaining children's attachments 175Parental disputes and agreements 177Helping parents to work out parenting plans in mediation 178

Building step-by-step agreements 180Shared residence 180Helping parents to shift from conflict to co-operation 184

Asking parents for a portrait of each child 184Techniques and skills in mediating about children 185

Using the flipchart, drawing an ecogram 187Timing and structure in mediation sessions concerning

children 187Children said or considered to be at risk 187Children's roles and strategies in relation to parental conflict 188

Example 189

Contents xix

Acting-out strategies to test parents' love and commitment tothe child 191

Example 191Children's protective strategies 192

Example 192

Chapter 8Child-Inclusive Family Mediation 195Children who want to have a say 196The voice of the child 197Should judges see children? 198Child-focused mediation 199Reassurances that parents need to give to children 200Child-inclusive mediation 201Different ways of including children in mediation 202Potential problems in consulting children within the mediation

process 203Potential benefits of including children in the mediation process 204Pre-requisites and check-list for child-inclusive mediation 206Agreeing arrangements with both parents and with the child 207The approach to the child and the child's consent 208Children's experience of child-inclusive mediation 210Aptitude, knowledge and skills for child-inclusive mediation 213

Two examples of involving children in mediation 215Anna (aged 11) and James (aged 7) 215Tom (aged 15) 217

Parent-child mediation 218Mediation with children, parents and teachers 219Discussion groups for children 219Training children as peer mediators 220A holistic approach to family mediation 221

Chapter 9Mediating on Money Matters 223Relationship breakdown and poverty 224The meaning of money and property 224Interrelated issues - children and financial matters 225The lack of a statutory formula for financial settlements 226Unmarried couples 226Mediation compared with the Dispute Resolution elements of

ancillary relief litigation 227Financial disclosure in mediation 228

Gathering information 228Supporting documents 231Setting manageable tasks 231Considering expenditure 231Debts and liabilities 233Filling in the gaps 233

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Anticipating and pre-empting 234Achieving finality 234

Mediating on financial matters - combining different approaches 234Sharing and considering financial information - the flipchart 236

Disadvantages of using a flipchart 236Advantages of using a flipchart 237

Mediating on financial matters - summary of tasks 238Mediation skills 239

Planning and prioritising 240Exploring options 240

Mediation example 241Preliminary proposals 242Working towards solutions 243

Pension provisions in divorce settlements 243The emotional and symbolic value of possessions 244Example of mediating on interrelated issues 245Example of mediation with a retired couple 246Example of mediation with an unmarried couple 247Can mediation deal with complex finances? 247Pre-nuptial agreements 248Civil partnership disputes 249Mediation in inheritance disputes 249Choosing the Appropriate Dispute Resolution process for

financial disputes 250

Chapter 10Managing Power Imbalances in Mediation 251Different frames for viewing power 251Power and gender 252Couples who share the driving 253Power imbalances in family mediation 255

Power to end the marriage or relationship 255Power to resist or block a settlement 256Gender 256Knowledge is power, financial control 256Emotional pressure 257Personal characteristics 259Verbal domination, education, social status 259Physical and/or emotional closeness to children 259New partners, support from family, friends and colleagues 260Cultural factors, moral power, religion, support from religious

leaders 261Legal advantage 262

Empowering participants in mediation 262How interventionist should mediators be? 263Managing power imbalances in mediation 264Agreeing ground rules in mediation 266The mediator's use of power 266

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Flexible balance in mediation 270

Chapter 11Dealing with Deadlocks 273Conflict cycles and traps 273NLP techniques and mediation 274Structure and pace 276

Structure 276Pace and time 276

Techniques and skills 277Getting to the nub of the problem 277Dividing problems into smaller parts 277Mediation skills 278

A typology of impasses 279Where does the block lie? 280

Level 1 - External blocks 281Level 2 - Interpersonal or interactional blocks 281

Different kinds of interpersonal blocks 281Testing commitment to mediation 285

Confronting and challenging 286Being puzzled 286Acknowledging difficulties 286Reversing roles 286Setting tasks and time-limits 286

High conflict in mediation 287Anticipating a walk-out 289

Internal blocks within individuals 289Acute grief 289Understanding different stages of grieving and adjustment 290Acknowledging acute shock, distress and grief 292

Short-term focus 292Enabling a grieving person to express anger 293Making connections between anger and grief 293Valuing dreams and aspirations 293Using metaphors and analogies 294Referral to counselling or psychotherapy 294Meeting obduracy and resistance 295

Blocks within the mediator 296BATNAS and WATNAS 296Some deadlocks remain deadlocked 298Knot theory and mediation 300

Chapter 12The Memorandum of Understanding and Open FinancialStatement 301Introduction: Why do we need a standard format for Mediation

Summaries? 301The Memorandum of Understanding (MOU) 302

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Open Statement of Financial Information (OFS) 304Professional drafting and charges 305What do participants need in their Memorandum of

Understanding? 306What do legal advisors look for in the Memorandum of

Understanding? 307Structure of the Memorandum of Understanding 308

Cover page 308Required introductory paragraphs 308

Background Information 308Issues brought to mediation 309Proposals for settlement 309Separation/Divorce 309Parents' arrangements for their children 309The Family Home 310Proposals for division of capital and other assets 311Child Support 311Spousal Maintenance 311Welfare Benefits 311Pensions 311Inheritance 312Wills 312Tax 312House contents/personal possessions 312Outstanding Issues 312Questions on which legal or financial advice is needed 312Action Plan and Time-Scale for Action 313Ending 313

Interim Arrangements, including agreements intended to belegally binding 313

Sample Memorandum of Understanding 315

Chapter 13Research on Family Mediation 321Testing the benefits of mediation 321Parents' experience of in-court conciliation 323In-court mediation 325Evaluating mediation 326Research on the Family Mediation Pilot Project 1996-2000 328Mediation and gender issues 329Mediation costs compared with legal costs 332Comparisons between mediators and lawyers 334Do mediators only settle easy cases? 335Settlement rates and client satisfaction 336The mediation process 338What makes one mediator more effective than another? 339

A dynamic, pro-active approach 339Clear structure and focused questions 340

Contents xxiii

Predictors of positive mediation outcomes 341Can any conclusions be drawn? 342

Chapter 14International Family Mediation and Future Directions 345Family mediation in Europe - an overview 345

Austria 346Denmark 346France 347Germany 348Italy 348The Netherlands 349Norway 350Poland 351Portugal 352Spain 352Sweden 352Switzerland 353Russia 354

The Council of Europe's recommendations on family mediation 354The European Forum on Family Mediation Training and

Research 356The European Directive on Mediation (2008/52/EC) 357Harmonisation of legal systems in Europe 358The Hague Conference on Private International Law 358Judicial co-operation in international cross-border cases 359International cross-border family mediation 361Specialist services providing international family mediation in

cross-border cases 362Questions to consider in relation to cross-border disputes over

children 364Different models for international family mediation 365Referral to cross-border mediation 366

Stage 1 366Example 366

Stage 2 367Stage 3 367Stage 4 367

Structuring cross-border mediation 367Enforceability of mediated agreements 368Training for international family mediation 369Mediation online 372Future directions 373

Appendices

Appendix AFamily Mediation Council Code of Practice 379

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Appendix BFamily Mediators Association Agreement to Mediate 389

Appendix COpen Financial Statement 393

Appendix DCo-Mediation File Record 407

Appendix EAdditional Ground Rules for Court-Referred Mediation 411

Appendix FDirect Consultation with Children Parental Consent Form 415

Appendix GBibliography 419

Index 431