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The English courts now expect all families to attempt mediation before starting legal proceedings in relation to finances and children on divorce (unless there are good reasons otherwise). Mediation gives people a safe place to resolve their differences at their own pace and to reach decisions with the help of an impartial third party. However, regardless of whether court proceedings are on the cards, mediation is an extremely flexible model that can be used at any time.

When couples separate, there may be issues to be decided about children, parenting, or finances. Often one person might receive a telephone call or letter from the other person’s solicitor and believe that that their only option is to instruct solicitors or go to court.  Mediation is in fact an alternative at any stage in the legal process. It gives couples the chance to speak to each other directly and explain their concerns and needs in the presence of a professional. Not only can mediation save people thousands of pounds in legal costs, it can also be an empowering process as the clients take responsibility for the decisions that are reached. It is never too late to mediate throughout the separation process, even when court proceedings are underway.

Even years after separation, mediation can be helpful if unexpected problems arise. For example, people may return to mediation if their circumstances change substantially following their original divorce settlement. Going back to court to vary a financial order can be expensive and carry risks. Judges have a considerable level of discretion and predicting the outcome of court proceedings is difficult. Mediation allows parties to retain greater control. It can provide people with a calm and safe environment in which to negotiate freely without decisions being forced upon them. Furthermore, there is nothing to prevent people from going to Court if the mediation breaks down. Mediation is a confidential process and it can offer people the opportunity to be open and creative in reaching solutions without the worry that the information might be used against them at a later stage, in court or otherwise.

Perhaps most importantly, it is never too late to mediate over children matters. All mediation at Wells Family Mediation is child-focused, so the welfare of any children will be the most important consideration in any discussion. Research has shown that it is important for children to have parents who can communicate and continue the job of co-parenting following separation. Mediation encourages people people to lay aside conflict and separate their emotional relationship from their parenting relationship. It is normal for people to experience difficulties in making this transition and mediation can provide people with a safe space to discuss difficult issues. It can also be helpful to return to mediation to revisit parenting agreements and consider how they have worked and if any changes need to be made.  We therefore encourage anyone to return to mediation at any stage if they wish to discuss any children or parenting issues, even years after they separate.

Mediation is not about enforcing ‘rights’ or vindicating the other person – it is about having a practical conversation that is future-focused, child-focused and reality-based. It is never too late to work together to find solutions to problems that will ultimately benefit both clients, their children and their extended families for many years to come.

I want to relocate –  what can family mediation do?

When one parent decides to relocate and there are children involved this can be a painful, unsettling and challenging time for a separated couple.  Whether the proposed move is internal (in the UK), or external (abroad), there will undoubtedly be a big impact on day to day family life and the current arrangements for the children.  This can naturally lead to difficult discussions and conflict between parents.

Many relocation cases end up in court with one or other parent looking for an order under The Children Act 1989, either a Specific Issues Order (to allow them to relocate), or a Prohibited Steps Order (asking that the move not be allowed). What we know from judges, is that they recognise relocation cases as amongst the most difficult and painful that they deal with.  The court is focused on the welfare of the child and will take a holistic and global evaluation of the proposals which the parents are making, alongside the wishes of the child or children.  This is a complicated process for judges who have to balance conflicting wishes of the parents against a raft of other considerations around for example; finance, education, housing, support networks, the impact on the mental health of both parents if the move does or does not go ahead.  It is recognised that the outcomes from court can seem varied and arbitrary for parents and often do not include detail of how the arrangements will look after relocation.  Further, coming out of a lengthy court process it can be extremely difficult to move ahead with a decision which has been made for you, focusing on a positive co-parenting relationship going forward.

Following a Mediation Information and Assessment meeting (MIAM), if mediation is deemed suitable and is a process which parents are open to trying, then this can offer a positive alternative to court.  During the process the mediator will hear separately from each parent and then in joint sessions, they will have a safe space in which to begin to explore some of the painful choices and practical considerations which will arise if a relocation were to go ahead.  Mediators can link families up with therapeutic support if this would be useful for the two of them or their children during this tough time.  They will also explore the reality of how things will look if a relocation does or doesn’t go ahead and they will encourage the person who isn’t locating to think in an open way of how things might feel and any ideas which they may have but perhaps have been afraid to share, with communication at a low point.

At Wells Family Mediation we have dealt successfully with many relocation cases. Although challenging and emotional, we recognise how the work parents do in mediation can help each of them feel more included and invested in the eventual choice which is made about where parents are to live.  In certain cases, we can include children as part of the process through Direct Child Consultation.  In mediation, families are able to retain control over the decision making. Mediators help them to tailor their arrangements to suit their situation, working through the realities and practicalities of these, in a way that the court doesn’t have the resources or capacity for.  Most importantly, we see that mediation has helped support and protect the co-parenting relationship between parents, at a difficult and painful moment in their lives, which we know is crucial in offering their children the best opportunity to thrive now and in the future.

The mediators at Wells Family Mediation explain the mediation process and how it can help families through different circumstances.

Nikki Brauer from WFM discusses the benefits of hearing the children’s voices in mediation. Video produced by Fegans and WFM.

When you separate, one of the biggest decisions to make is where your children will live and how much time they will spend with each parent. There are no set ‘rules’ about child arrangements on separation. The law no longer talks about ‘custody,’ ‘access,’ or ‘primary carers’ – it simply states that parents have joint and equal ‘responsibility’ to meet their children’s needs. The family courts presume that parents know what is best for their children and leave them to make whatever arrangements they like.

Of course, sorting out the practicalities can be difficult in the initial stages of relationship breakdown when emotions are running high. It is important to get the help you need to resolve things in such a way that your children will experience successful ‘shared’ co-parenting.The way in which issues are dealt with following a relationship breakdown will have a large impact on the parenting relationship for the future. The research is clear that children are affected by parental conflict and ‘split-parenting’ following separation.

You may wish to use a ‘parenting plan’ to help you to make joint decisions about contact and other specific issues upon separation, such as how you will communicate with each other moving forwards, and how you will work together to make decisions about school, bedtimes, homework, medical treatment, behaviour, course selections, careers advice etc.

If you cannot agree initial arrangements between you, or if something arises at a later stage, then mediation can help resolve disagreements with the guidance of a trained impartial professional. Mediation is not legal advice nor is it counselling. A mediator will listen to each person’s point of view and help you to work towards what is best for the children. The aim in mediation is to support parents to make the transition from parents who live together to parents who live apart but who have a successful ‘shared parenting’ relationship, even if you hold different views at the start.  Mediation is available at any stage, with couples returning years after separation to discuss a specific issues such as; changes to weekly arrangements, schooling, or university costs.

If you cannot agree the arrangements between you then you may need to use a solicitor or the court, but these options should be seen as a last resort. Children from separated families thrive when they have close relationships with both parents – and when parents can communicate and work together to agree what is best.

For 20 years, there have been moves within the family justice system to direct couples towards conciliation processes and away from litigation. Never was this more so than in the pre-LASPO plans for couples to choose mediation rather than representation by solicitors. But for all the language of conciliation and cooperation, the results have been disappointing. The legal aid mediation starts are around half what they were pre-LASPO and the courts are filling with conflicted, unrepresented families, almost to breaking point – for the system, the judges and the families themselves.

Nick Goodwin from the Ministry of Justice has spoken at this conference of having ‘user need’ at the heart of reform with an aim, amongst others, of improving ‘access to justice’. This raises two questions: in a family breakdown situation, who is the ‘user’? And depending on the answer to that question, is improving ‘access to justice’ the right goal? If we are to take s 1 of the Children Act 1989 seriously, then I suggest not. If the welfare of any child of the family is to be the paramount consideration, then we need to find a different approach to family breakdown.

The current system

There is little wonder that the take-up for mediation has been disappointing in the current system. First, there has been no funding to raise the profile of mediation. It is often said that mediators must be optimists but never was there such blind optimism as by the government in their LASPO aspirations for sep arating couples to choose mediation without any investment into marketing the mediation route. Not surprisingly, many people still do not know what mediation is, when it is suitable and how it might help. There is confusion about mediation even from professionals within the family justice system, so what hope is there for the general public? Some serious funding and education about mediation is urgently required.

But there is a bigger issue to address: Why would people choose mediation when the language in the system is all about justice? We have the ‘family justice system’, the ‘court’, the divorce has a ‘petitioner’ and a ‘respondent’. The whole system is driven by rules and regulations developed over many decades (even centuries), formulaic and structured. The expectation is of justice. And the outcome is referred to as an ‘order’, or for those unfortunate enough to go all the way to a final hearing, a ‘judgment’.

The language and context is wholly adversarial; one against the other, as in a boxing ring. Against that background, there is inevitably an instinctive need to protect oneself. So, naturally, the first call would be to a solicitor, a legal professional who will defend and maximise the client’s position. Sadly for many families, the s 25 factors encourage further adversity. The outcome is unpredictable because of the judicial discretion over their application. So one client is advised of one outcome, and the other is advised of a different outcome. Couples who hope ‘the system’ will help them to resolve things simply are thrust into adversity instead. However much we within the system think we are directing couples to conciliation processes, the reality is that it is still the door of the court which beckons. The system invites couples to climb into a boxing ring, guard up and present a fighting stance and the ref then tells them that it would be better to go and have a chat instead – what muddled messages we give! And if the chat does not work, then back into the boxing ring they go.

The invitation to mediation is completely different. The outcome fits within an understanding of justice, but everything else about it is different. The language is of working together, difficult conversations, finding solutions. Instead of handing over the problem to another to resolve, the responsibility for resolution stays with the clients. The context is far from a boxing ring – it is the post-separation equivalent of the kitchen table. The discussions are difficult, as indeed they would be if the couple were still together and had an issue to resolve: shall we cash in our savings or shall we move Ben to a different school? Where there are conflicts, these get worked out round the kitchen table or its equivalent. After separation, the same principles apply. There are issues to resolve and, in mediation, it is the context of working through a problem and finding an acceptable way forward. It is uncomfortable and brave – because difficult conversations are never easy.

And the outcome is totally different from the court route. Far from receiving a ‘judgment’, the couple try to find an acceptable way forward. It is their solution for their family. It means the next time an issue arises (as it will, if there are children) the couple are that much better able to manage it themselves. The difficult conversations create an opportunity for the couple to transition from being parents with a failed relationship, to two separate individuals who can embark on shared parenting for their children. Why would the invitation to me diation hold appeal when the system invites couples to take defensive positions in a quest for justice? The reality is that family breakdown remains an adversarial process under the banner of justice.

What is the ‘user’ need?

The reforms for the future must be driven by need. I will look at these under three headings, the needs of the state, of the separating couple, and of the children.

The needs of the state

Most obviously, the system needs to be manageable and affordable in the modern climate of relation ship breakdown. Sir David Norgrove in the Family Justice Review urged the government to promote a collaborative approach rather than adversarial approach. He continues to advocate a fundamental change of culture and legal framework and he voices his concerns that reforms so far have failed to address this effectively. The Review spoke of providing the ‘least worst outcomes’ for families. Many judges seem to concur with this – most of their cases are about solutions rather than justice in the purer sense. There are, of course, cases where access to justice remains important and the importance of the justice route in those cases cannot be undermined. But they are a small percentage – the judges I speak to say they are probably under 5% of all private cases they do. At the moment, the whole system is geared towards the needs of the few – with great collateral cost in money and stress to everyone. The system must meet the needs of the majority and not be driven by the needs of the few.

The needs of the separating couple

At a difficult time of relationship breakdown and against the current court backdrop, it is a natural instinct to protect oneself against the other in order to ensure a fair outcome. Hence the first call to a solicitor. But there is plenty of research to show that separation and divorce is not primarily a legal event. Maclean and Eekelar found in Lawyers and Mediators: The Brave New World of Services for Separating Families (Hart Publishing, 2016) that solicitors have to deal with many problems that are not family law. They are expected to be lawyer, friend, social worker, therapist and so on. The backdrop of a justice system drives clients to want legal advice, whereas in practice their needs go way beyond matters purely legal. The Resolution manifesto for the family justice system includes the need to help parents understand their responsibilities when they separate – hardly a legal issue. Professor Jan Walker says in ‘What’s in a Name? Reflections on the messages from family justice research for mediation practice’ at p 000 below that research shows that clients want:

• clear, comprehensive information and advice on number of topics, including what options they have and who might help;
• to sort out ‘the mess’/make arrangements for the future;
• to restore some sense of normality;
• to move from uncertainty to certainty;
• recognition of the emotions they are experiencing;
• to deal with/acknowledge the hurts and recriminations;
• to understand what is happening to them and the decisions they have to take;
• to feel safe;
• someone to ‘hold their hand’ on occasion and ‘tell’ them what to do for the best;
• legal information and (legal) advice and guidance.

A goal of providing better ‘access to justice’ misses the wider need of the separating couple at a time of family breakdown and may well exacerbate some of their problems.

The needs of the children

There is overwhelming research to show that parental conflict is harmful to children. Professor Jan Walker says (see above) that research indicates that two aspects of the parental relationship are particularly important for children’s outcomes when parents separate:

• the interaction between the parents around their own relationship with each other; and
• the ways in which the parents work together as a parental team.

If both are positive, positive benefits accrue for the children. Dr Stephen Adams-Langley, senior clinical consultant at the children’s charity Place2Be states that:

• children read the body language of their parents and are affected by the emotional atmosphere;
• the key message for parents is that they have to put more effort into the love they have for their children, than into the animosity they may have for each other.

If we are serious about protecting children, then we need to look very closely at the impact of the current system on children of separating families. We may not have the actual voice of the child in every mediation or every court case but we have do have a wealth of research which can speak for them. We know that it is in their interests for their parents to manage a good post-separation relationship. Parents have an important job to do which continues after they separate. The current culture where the instinct is to call a solicitor first is far from child-focussed.

• First, the solicitor acts for the parents not the children. In a standard private family case, theparties are represented but the children are not.
• There is no protection for children against a solicitor exacerbating conflict between the parents. Resolution has a newly revised and excellent code of conduct and a huge amount of work is done by them in promoting collaborative and child – focussed practice in family cases. But it is a voluntary organisation. Children remain vulnerable to the conduct of solicitors who fuel conflict in the parenting relationship, under the guise of their professional duty to get the ‘best’ outcome for one parent against the other parent.
• Solicitors are legal experts who are not specifically trained in conflict resolution and parenting issues. Many work hard at promoting good outcomes for the whole family, but by definition their attempts are limited through only seeing one client, and hearing only one part of the family story. In order to address conflict issues and provide support to rebuild a successful shared parenting relationship, a family professional is needed who works with both clients.

A quick look at the testimonials of a few ‘successful’ family solicitors speaks of the absence of child – focus in the way they promote their approach to family cases:

‘A brave and persistent fighter for his clients. Won’t leave a stone unturned in making sure that his client gets a good deal. Famously fights his client’s corner to the final bell. A tough litigator. Relishes the difficult cases and get results. Represents each client with dogged de termination. Indomitable and shrewd – you want her in your corner.’

Chambers and Legal 500 appear to suggest these are commendable qualities in a family lawyer. If  we are to take the welfare principle seriously, then any family professional – mediator, solicitor, Cafcass, barrister or judge – should ask these two simple questions at the conclusion of a case, when we are closing our file: ‘In what state are we leaving the parenting relationship?’ ‘Will they be able to communicate, going forwards?’

Everything we are about in mediation is to reduce conflict and support the couple to find solutions so they can manage the future together as parents. Whether we’re dealing with divorce, finances or children issues it is always about diffusing conflict between mum and dad. But why would a client choose this difficult and brave route if there is the lure of ‘justice’ on offer and the system upholds a fight-response? Is it not easier to pass the problem to someone else to resolve (a solicitor or a court) rather than face the difficult conversation oneself? Anthony Douglas of Cafcass speaks of the need for ‘courageous conversations’ for families.

The ‘Mapping Pathways to Justice’ research was illuminating in many ways. It would be interesting to ask the questions of a different client group – the children – over an extended period. How do children experience childhood differently, according to the various pathways taken by their parents in the family justice system? If we are to put children’s welfare first then the whole system that deals with family breakdown needs to be one which supports parents to make the difficult shift from parents who live together, to parents who live apart and have a successful parenting relationship. Everything is pointing away from the formal justice route for the majority and into a solutions-focussed system. Society has changed but mostly our understanding of children and their needs has changed.

A family solutions system

We cannot re-work the old adversarial system. Sir David Norgrove and many others have said this. We need a radical re-think, for no reason other than that is what the welfare principle requires. It is not acceptable to have a system which propels parents into adversity. At present, the overriding principles of the Family Procedure Rules are directed at efficiency and effective use of courts, rather than the health of separating families or the welfare of any children. Professor Neil Robinson proposes a whole new structure. Instead of a family justice system, which puts justice at the centre and has various legal processes like mediation/collaborative law as offshoots from it, let us think instead of a ‘family solutions system’ from which justice can be an offshoot for the minority who need it. HHJ Martin Dancey also advocates a move from a ‘justice’ system to a ‘solutions’ system.

In a family solutions system, mediators would continue to work alongside other professionals, as we do now. The few that need justice can be diverted into a justice process, but the majority would be dealt with by professionals that help them find their solutions – with access to legal support, finance and housing information, parenting programmes, the voice of the child and so on. But, primarily, there would be an expectation upon parents to work things out. It would make sense to take this out of the purview of the Ministry of Justice. Family breakdown is not primarily a justice issue and should not be treated as such. We need a new Children and Families Department – or at least a relocation within Health and Social Care. Professor Robinson (above) makes an analogy with the way mental health fits within the Department of Health and yet has a Tribunal process for appeals.

It may take a generation to change the way in which we ‘do’ divorce but if we start now, the culture will gradually change. We can at least hope that our children’s generation will approach it differently. We need an end to the boxing ring culture and instead must support families in the courageous conversations that are needed when a relationship breaks down.

Helen Adam
Solicitor and Mediator, Wells Family Mediation

Superb illustration of the impact on children of parents in conflict and the relief that children experience when their parents start to work together.  Video produced by Fegans and WFM.

Co-Parenting video clip prepared by Fegans and Wells Family Mediation from Wells Family Mediation on Vimeo.