Towards a positive future for mediation?

Towards a positive future for mediation? Family Mediators’ Association Conference, September 2014 Anne Barlow, University of Exeter

Research and Family Mediation • Little recent independent research on family mediation in England and Wales • Debates often polarised • Not known how well known it had become by public • Advocated by Family Justice Review • Family mediation is usually contrasted with the court experience and little was known about how it compared with other out of court processes • Many (including policy makers) felt mediation was not fulfilling its potential and could reach more people • Legal aid for intakes/MIAMs • Better routes into (successful) family mediation needed?

What was our study trying to do? • To provide an up-to-date picture of awareness and experiences of three forms of out of court family dispute resolution: • solicitor negotiations • mediation • collaborative law • To produce a ‘map’ of family dispute resolution pathways and consider which pathway(s) is/are most ‘appropriate’ for which cases and parties • To provide research evidence to inform policy and practice

Study design and methods • Project commenced July 2011 and Advisory Group appointed • Phase One – Two National Surveys – 2011 - 2012 • 2974 (Omnibus) +3,700 (CSJPS) adults, nationally representative. • 6,647 adults -awareness of FDR processes. • 315 adults divorced/separated between1996 -2011, recorded 349 experiences of FDR processes. • Phase Two – Semi-structured Interviews – 2011 - 2013 • Practitioners: nationally spread range of solicitors, collaborators, mediators (40). • Parties (96) (45 men; 51 women) recruited from national surveys and supplemented by other national recruitment strategies, with a mix of legally-aided and non-legally aided parties • 44 had experienced solicitor negotiation • 56 had experienced mediation (across a spread of mediation agencies) • 8 had experienced collaborative law • Phase Three – 13 Recorded sessions – 2013 - 2014 • Recording and analysing lawyer-client interviews (5), mediation sessions (5) & collaborative law meeting sessions (3).

FDR Awareness – public perceptions • The national surveys both show that there is recognition of the various alternatives to court for resolution of family disputes in the general population, though 45% of the BMRB National Omnibus sample had heard of none • There are relatively high levels of public general awareness of mediation, and • Media and internet are key sources of information to the general public about FDRs • There are higher levels among the divorced/separated, but • For those divorcing/separating since 1996, solicitors were the major source of awareness of FDRs, including mediation …

The Process of Mediation: key findings Almost three quarters of our party sample were satisfied with the process of mediation, compared with 41% of the divorced/separated national sample. Those who were not satisfied were most often those who felt pressured into mediation. Perceived quality of the practitioner was key. The distinction between legal information and advice appears to be well maintained by mediators but is not always appreciated by parties. Overall in our sample, Mediation was seen as improving communication in around 40% of cases, whereas under a quarter of Solicitor Negotiation participants felt they benefited in this way. “We still have the odd niggle,but it’s taught me to... You can’t go over the top having every little minor detail. It’s made it easier. We don’t argue like we used to, and I think it just stems from Mediation.” (Kathy). In Mediation, good communication outcomes were highly correlated with successful resolution.

What people liked about the process • Positive features of mediation process included the structure it provided, the fact that it was generally quicker and cheaper than other options, and its ability to open communication, present parties with new angles and help them to move forward. • “I wouldn’t say they gave us anything new. I would say maybe a different angle or a different way of looking at things because we were unable to because of our emotional involvement in that particular topic” (Stan) • “It helped us step along the way.” (Norah) • Generally mediation was well-explained to people, although they were often still not sure what to expect

Mediation process – the positives • Many found it a good, if emotionally difficult, process – • ‘Having everybody together in a room, as a process, is really helpful. [But] I did feel very alone, I did feel quite alone in there.’(Tilda, int040) • It could often improve communication and family relations • ‘it facilitates…communication outside of the sessions, it’s therapeutic not only for the individuals involved but … as a family so it’s beneficial to the children, and it enables you to sort of think outside of the box and enables you to come up with solutions that you wouldn’t have necessarily have sort of come up with if you had sort of gone to a solicitor.’ (Malcolm, int075) • Most would recommend it to another • Many were less satisfied with the outcome in their case than the process as whole, but could distinguish between these!

Mediation: an uncomfortable process Some parties found the process extremely hard. “It was extremely traumatic. It’s a very, very unpleasant memory indeed...I remember certain terrible moments in it, you know, some of the worst moments of my life.” (Monica) Some expressed concerns about power imbalances, and perceived lack of mediator impartiality. “He was all for my husband. I felt like a little naughty school kid sat in a corner.” (Kathy) “And the mediators sort of work it like that. They seem to stand together with the wife, or with the girl. ‘Cos the mediators were all ladies. There weren’t any men.” (Charlie) Some felt they had to participate even though they did not expect the process to work; “It was a stepping stone to get out the way, to jump over that hurdle to get to court.” (Stan) Parties were also frustrated by the cost of multiple sessions

Conflict and Emotions in AFDRs: key findings For any process to be successful, parties need to be emotionally ready to cooperate and cope with negotiations The Solicitor Negotiation process has an inherent tendency to be emotionally upsetting and to escalate conflict by virtue of being conducted by correspondence. Many people found Mediation to be an emotionally fraught process even if in hindsight it was positive. “I did find that quite helpful, but I also found it just hugely painful as well” (Tilda). Conflict between the parties was a frequent cause of Mediation breaking down. “My ex-husband was very antagonistic. Didn’t provide information, became very aggressive during the Mediation sessions, so I called an end to that.” (Lorna).

Emotional readiness • "My overall feeling, even looking back now, that it was all too soon [to mediate]… I feel looking back there should be a temporary [children] arrangement made quickly, and then you need a minimum of, I don’t know, three to six months before you can start talking about anything else. Because when you’re an emotional wreck obviously you can’t make good decisions, and that was really the position that I was in."(Rebecca) • "...when emotions are running high... certain people are not ready to negotiate, especially my ex, who was very bitter and very sore. I think initially she wouldn’t have listened to sense… it would have certainly suited me if we could have negotiated sooner and an outcome had happened sooner, but as far as getting anything out of my ex, I don’t think so."(Jason)

Mediation experience – the reservations • It does not suit everyone, even if they are both keen to compromise • ‘We tried to set up mediation but then we found me and her couldn’t sit in the same room together. ..I tried, um... For the benefit of the children, I tried my best to have a go at mediation but just- It was a waste of time.’ (Richard, int 002) • A number felt pressured into mediation by partners, solicitors and family justice system- • Gloria’s solicitor said it was compulsory even though her husband was abusive. ‘In this city they won’t take a case unless you’ve been to mediation. You are not given a choice.’ (Gloria, int 018) • Rebecca identified inability to withstand pressure when parties are at different emotional stages. ‘I didn’t choose mediation at all to be honest, it was [ex-partner]….She was pushing me into it, but I was such a mess at that point that I wasn’t really in any position to choose ...’(Rebecca, int008) • It is not felt to suit all cases, such as where there is a threat to snatch a child (Rebecca, int 008), where there are mental health issues (Charlotte, int 015), or abuse or coercive control within the relationship, such as Lorna (int 013), who felt, • ‘it was just another arena in which he could bully me.’

Mediation experience – the reservations • Lack of enforceability of the agreement reached was felt as frustrating by some • . ‘Just because you agree in mediation, doesn’t mean it gets enforced, so it’s a waste of time’. (Stan, int 027) • Lack of mediator control over the other party’s conduct • There needs to be a respectful environment maintained by the mediator and my mediator wasn’t maintaining that. (Stan int027) • Lack of impartiality, often linked to gender of the mediator, came through often • Laura, int 005, recounted - ‘It wasn’t impartial at all. I weren’t satisfied with it at all. ...Oh we discussed the children, but I might as well have not even been in the room, ‘cos they just dealt with it themselves. I felt like a little naughty school kid sat in a corner..’ • She and several others like Charlie who had two female mediators suggested two mediators with a gender balance: • If there was a female and a male, no-one just gets talked across.’ (Laura) • You have the option in the NHS to be seen by a male doctor or a male nurse and I just thought that there, you know, there ought to be more- More people available – or anybody available – to be seen by a man. You know, or a... A balance. ‘Cos we had two mediators, obviously. Um. One man and one woman’d have been good.’ (Charlie, int 011)

Horses for courses? Choosing a process • Legal aid eligibility / costs • Children/finances • I think the security of solicitors because you have the law behind you...so therefore it worked for me financially... I didn’t feel there was a place for emotion in the finances... Whereas with the children, the mediation, there was a big place for emotion, so that’s how I felt it worked. (Sandra) • Type of assistance needed • Mediation can be "excellent" for parties who have struggled with repeat patterns of behaviour from their relationship but who are committed to learning better communication skills for the sake of their children. (Kirsty Oliver) • "I really needed someone to help me because I wasn’t in the headspace really to negotiate... I needed someone on my side if you like rather than a mediator" (Marcus, settled in collab)

Good practice around Voice of the Child • We found that good practice, where mediators were skilled at reframing questions around children, was appreciated by parties – • “One of my husband’s objectives was to spend as much time with the children as possible and so the mediator said, ‘Well, why don’t we phrase it as to be able to build meaningful relationships with the children?’” (Tracy, Mediation) • Examples of this were identified in recorded sessions too: • “The reality is, as you have said, you have got kids and they are at the heart of the solution.” (Solicitor-Client Interview 203) • “Because you have both accepted that you do want [child] to have a relationship with his dad, so how can we reintroduce contact in a way that would be sensitive for [child]?” (Mediation 209(1))

Mediation: What could be done better Avoid the impression of alignment with one party before the first joint session. Better screening for abuse and conflict – many complaints about lack of impartiality occurred when there was high conflict between the couple which the mediator could not contain. Anticipate and respond to parties’ need for legal advice by encouraging them to obtain legal advice before commencing mediation. More frequent use of gender-balanced co-mediation would help to address some parties’ concerns about partiality. Provide greater opportunities for children’s voices to be heard in mediation.

Commonalities across process • In all processes, we found – • Conciliatory approach is now dominant in all processes • Lower conflict cases are usually easier to settle • Quality of practitioner(s) is key to settling higher conflict disputes • Lack of emotional readiness is often a barrier to settlement; high instances of depression were reported • The Voice of the Child is a focus across the processes but is in strong competition with entrenched ‘adult rights’ discourses and so is sometimes difficult to maintain • Any process can be used to avoid settlement

Unresolved cases in AFDRs: Key messages Not all cases can be resolved by AFDR processes. For some, pursuit of ‘justice’ or what they perceive to be the right outcome is critical and trumps the expediency of a compromise settlement. For example, some fathers would not agree to anything less than 50:50 shared care and were still pursuing this.

Learning lessons- moving to best practice • Parties need real choice where possible to effect ‘appropriate dispute resolution’ and this should be positively (rather than negatively) offered to clients • Support from other professionals during any AFDR process is often needed and should be a ‘joined up’ rather than a ‘competitive’ process • All Professional Associations have a key role to play in providing comprehensive training and high standards of professional conduct • It is important to acknowledge that court is sometimes appropriate

Towards a positive future for mediation?