Mediation in Family Disputes

Principles of Practice

Marian Roberts

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317098461
• Edition: 4
• Topic: Law
• Subtopic: Alternative Dispute Resolution
• Index: Law

This is the authoritative textbook on family mediation. As well as mediators, this work will be indispensable for practitioners and scholars across a wide range of fields, including social work and law. It draws on a wide cross-disciplinary theoretical literature and on the author's extensive and continuing practice experience. It encompasses developments in policy, research and practice in the UK and beyond. Roberts presents mediation as an aid to joint decision-making in the context of a range of family disputes, notably those involving children. Mediation is seen as a process of intervention distinct from legal, social work and therapeutic practice, drawing on a distinctive body of knowledge across disciplinary fields including anthropology, psychology and negotiation theory. Incorporating empirical evidence, the book emphasises the value of mediation in mitigating the harmful effects of family breakdown and conflict. First published in 1988 as a pioneering work, this fourth edition has been fully updated to incorporate legal and policy developments in the UK and in Europe, new sociological and philosophical perspectives on respect, justice and conflict, and international research and practice innovations.

1What is family mediation?

The varieties of dispute settlement, and the socially sanctioned choices in any culture, communicate the ideals people cherish, their perceptions of themselves, and the quality of their relationships with others. They indicate whether people wish to avoid or encourage conflict, suppress it, or resolve it amicably. Ultimately the most basic values of society are revealed in its dispute-settlement procedures. (Auerbach, 1983, pp. 3–4)

The emergence in Britain of mediation as a recognized approach to settling family disputes following family breakdown has been, in many ways, a remarkable development. Its adoption in the late 1970s involved a new and evolving application of an ancient method of settling quarrels, perhaps better suited than any other to the special characteristics of family disputes. This fresh approach to family dispute resolution was a distinctive feature of a wider landscape of alternative dispute resolution processes, and of mediation in particular, that had developed across the civil and common law world. These changes were of such radical ideological and institutional import that they had begun to transform disputing arrangements in the West by the end of the twentieth century. This was a cultural transformation that followed a long period during which judges had acted as principal official agents of dispute resolution and lawyers had established a monopoly of control over negotiation within the litigation process and themselves as the sole means of access to the courts (Menkel-Meadow, 2012; Roberts and Palmer, 2005).

An important aspect of this transformation was the new significance that was accorded to the views of disputants themselves. The affirmation of the ‘person-oriented perspective’ which characterizes mediation and distinguishes it from the ‘act-orientation’ of litigation, also challenged traditional attitudes and values in the context of dispute resolution (Fuller, 1971). Courts and legal professionals, inevitably constrained by legal rules and limited knowledge, had failed to respond to the needs and interests of disputants who were perceived both to care about the processes by which decisions were reached and to be perfectly able, in most cases, to devise their own more satisfactory solutions to their disputes (Galanter, 1981; Menkel-Meadow, 2004).

Mediation is defined as a process of consensual joint decision-making in which a third person, the mediator, exercising a non-aligned role, assists those in dispute to negotiate together to reach their own mutually acceptable agreements. Mediation is based on certain values that have justified its use, both for the disputants as well as for those who have chosen to become mediators. These core ethical values are exemplified in a comparison of the way people are treated under existing forms of intervention:

It strikes me that if you have some kind of grading scale for your institutions, like courts, schools, and hospitals, as to which gave the participants the most adult setting, it might be interesting to see how different institutions rank. Are you told what to do or asked what you want to do? Are you made to wait or is your time valued? Are you allowed to know what is going on or are you kept in the dark? Are you powerful or powerless? Are decisions made for you or do you get to make the decisions? Are you treated as a human being or are those qualities not considered? One of the things that strikes me in mediation is that it comes out much higher on that scale than many of our institutions and I think that is why it works. (Davis, 1984, p. 54)

This comparison highlights the standard of respect that lies at the heart of mediation as a practice intervention. Respect for the parties’ authority and capacity to make their own decisions has been paramount in mediation as has been respect therefore for their perceptions and values. This fundamental ethic of respect has been seen to be essential for the mediator to have proper regard for the right of the parties, whatever the difficulties, to be the architects of their own agreements, and for party competence and control, as distinguishing characteristics of mediation, to have meaning. Norms of fairness, mutual respect and equity of exchange have long informed the expectations of adult behaviour that underpin the practice of mediation (Fuller, 1971; Rubin and Brown, 1975). These expectations have been perceived to be of most value precisely because of the recognition that conflict may be bringing out ‘the worst’ in people, who, in the context of family breakdown, may perhaps have become victims of their own ‘powerful infantile feelings which divorce itself may catalyse’ (Brown and Day Sclater, 1999, p. 154). However, laid low by circumstances and personal vulnerability, disputants were not to be regarded as lacking capacity to make their own decisions. Mediation, simply in the offer of a calm, safe forum for reasonable exchange, could provide the opportunity for the parties, not only to have the conversation they were unable to have on their own, but also to retain authority and regain control over their own affairs.

Decision-making capacity defines the standard of adulthood that informs decision-making authority. The location, in mediation, of decision-making authority with the parties, distinguishes it both from other forms of dispute resolution (such as lawyer negotiation and adjudication) as well as from other forms of professional intervention (such as therapy, counselling and social work). The affirmation of the decision-making authority of the parties derives from a tradition of humanist ideas about equality and liberty, which accords respect to the inherent dignity, privacy and autonomy of the individual person (for example, Lukes, 1973). Sennett (2003, p. 262) distils the connection between equality, autonomy and respect in this way:

Rather than an equality of understanding, autonomy means accepting in others what one does not understand about them. In so doing, the fact of their autonomy is treated as equal to your own. The grant of autonomy dignifies the weak or the outsider; to make this grant to others in turn strengthens one’s own character.

The spirit informing the pioneering origins of mediation in Britain was a transatlantic reflection of the ‘new consciousness’ that had arisen in the social movement of the 1960s in the United States, in the community justice movement in particular. This was a revival of alternative approaches to conflict and dispute that challenged traditional attitudes and values in the context of dispute resolution (a process memorably observed by Reich in The Greening of America, 1970). The values of mediation exemplified this spirit of the time – the importance of respect, dignity, fairness, justice, reciprocity, individual participation, consensus and party control. The resurrection of these values countered a dominant, prevailing value system characterized by adversarial processes, impersonality, lawyer control and rule-centred authoritarian command.

It is fair to say too that the story of the modern growth of mediation, incorporating family mediation, can be described in different ways (S. Roberts, 2006):

—as a response to the ‘evolutionary demise’ of ‘conventional forms of institutionalised searches for justice, in the form of the courts and trial because they are failing to satisfy modern requirements for voice, justice and conflict resolution’ (Menkel-Meadow, 2004, p. 100);

—as symptomatic of the changing nature of state power in late capitalism, manifesting both in the radically transformed nature of the courts developing new strategies of dispute settlement and in the expansion of government outwards to co-opt and shape a hitherto ‘private’ sphere of negotiation;

—as the struggle for recognition of a new professional group offering an innovative and different way of managing conflict and disputes, one involving the re-discovery of a universal and ancient triadic process;

—as a movement of recovery on the part of lawyers, fearing competition and seeking to protect their traditional monopoly of control over dispute resolution.

Aspects of all these interpretations inform this account of the family mediation story.

Until relatively recently, there was a limited choice open to a couple (married or cohabiting) for sorting out their differences in the wake of the dissolution of their relationship. They could negotiate together and make their own decisions on the vital and interrelated issues that confronted them on parting – issues relating to the children, their home, the distribution of their financial assets (and debts), maintenance and the divorce itself. Some couples, perhaps managing on their own or with the help of the local vicar, doctor, respected friend or family member, might work out their own mutually satisfactory arrangements. Although there are no figures available, many couples, at a time of separation or divorce, appear not to manage to engage in face-to-face discussions, let alone discussion free from the tumult of anger, bullying and rowing. Perhaps, in many cases, matters are just left unresolved to the satisfaction of none of those involved, especially the children (Mitchell, 1985).

The traditional approach in most cases (now seriously curtailed by savage cuts in legal aid for private family law) has been for each partner to consult their own lawyer and for the two representative lawyers to negotiate on their clients’ behalf, reach agreement if possible or, if not, hand over to a judge the responsibility for making decisions. The judge then made an order that was imposed on the parties on the basis of the facts before him/her.

For couples unable to reach agreement on their own, the only alternative therefore was to transfer responsibility for negotiating and decision-making to third parties, namely lawyers and/or judges. Then another choice became available. With the establishment in 1978 of the first family mediation service in Britain, the opportunity now existed for separating and divorcing couples unable or unwilling to manage entirely on their own, yet not wishing to relinquish responsibility for making their own decisions, to meet together on neutral territory and, with the help of a non-aligned third person – the mediator – seek to work out and mutually agree their own arrangements by means of a negotiating process structured to achieve this. Three crucial differences characterized this transformation: first, the location of decision-making authority now lay with the parties; second, the parties themselves, rather than the lawyers, became the negotiators; and third, the parties were engaging in a co-operative rather than a competitive endeavour to sort out their differences.

So mediation emerged to fill a space hitherto unoccupied, which none of the existing services, lawyers and the courts on the one hand, or welfare, advisory or therapeutic on the other, could in their nature have filled. Mediatory intervention cannot be a substitute for these other interventions. For example, mediation generally presupposes the parties obtaining independent legal advice whenever necessary. Being properly appraised about relevant legal matters is vitally important if people are to participate in negotiation in an informed and fair way. Notwithstanding the changing nature and focus of the contemporary court, manifesting hybrid processes and diversion procedures that encourage settlement rather than adjudication, mediation continues to remain a discrete and autonomous intervention separate from and independent of the court. Counselling or therapeutic help may also enable a party to engage more effectively in negotiation by alleviating incapacitating emotional, psychological or other stress. Given the common subject matter – the impact of family breakdown – that is frequently the focus of these various services, the need for clarity about the nature and purpose of each form of intervention is critical if confusion is to be avoided, there is to be informed choice and the interests of the public protected. Therefore, the specific and unique contribution of mediation has to be distinguished from these other forms of intervention which offer quite different kinds of help.

The development in the late 1970s of mediation in the sphere of family disputes (as well as in the fields of civil, commercial and community disputes) represents the modern discovery in the UK of a mode of dispute resolution that has an acknowledged anthropological and historical heritage (Rwezaura, 1984; Acland, 1995; S. Roberts, 2013). With its long-established and cross-cultural practice experience (the ‘second oldest profession’, Kolb, 1985) and a large and distinguished body of knowledge, mediation has been readily adaptable to the specific conditions of joint decision-making in the context of family breakdown. A rich resource of learning resides in the writings of those who studied the theory and practice of mediation first-hand and came to understand its processes and the role of the mediator cross-culturally on the basis of their empirical observations (for example, Simmel, 1908b; Douglas, 1957, 1962; Stevens, 1963; Fuller, 1971; Gulliver, 1979). These classic texts contribute crucial understandings about the nature of mediation and its distinctive features, understandings which are essential for safe and effective practice. The conceptual clarity that derives from this earlier period assumes even greater import in the light of the complexity and confusion, with attendant risks of unsafe practice, that colour contemporary family mediation practice – manifest, for example, in over-zealous governmental promotion of mediation at the same time that most of the protections of legal aid for legal advice and representation are removed; where commercial interests of mediation training providers conflict with efforts to raise standards of practice; in the proliferation of commercial training programmes, many unregulated, leading to an ever-expanding body of inexperienced practitioners in an already overcrowded market; and in the absence of a recognized national body with the independence and credibility to regulate training and practice. It is perhaps not surprising that this transformation in dispute resolution processes, with its significant social, cultural, legal and political ramifications, has also generated contradictory and problematic consequences.

In the early years, handbooks for family mediators were used as a primary resource for practitioners and, until relatively recently, were few in number and were from North America (for example, Coogler, 1978; Haynes, 1981; Lemmon, 1985; Saposnek, 1983). While these contained many valuable insights for the practising mediator, they were of limited use in Britain. In the first place, the American focus was primarily on the resolution of property and financial disputes (Coogler, 1978; Haynes, 1981) when that of the British was initially primarily, though not exclusively, on disputes involving children. Second, where the focus was on children, the authors had grafted mediation onto their practice of family therapy and their approach to mediation therefore reflected this professional appropriation (for example, Saposnek, 1983). Haynes’ handbook (1993) on all issues of mediation, adapted by Fisher and Greenslade to the British legal, social and cultural context, was designed to be used in conjunction with associated training, professional regulation and insurance. Today, North American influences, theories of practice in particular (for example, the ‘transformative’ approach to mediation¹), continue to dominate the mediation literature but with limited impact on practice in Britain (Roberts, 2007). Here practitioners’ writings drawn from their own training and practice experience constitute a valuable source of learning about mediation skills and strategies (e.g. Parkinson, 2011; Whatling, 2012).

Mediation across fields of practice is now an established landmark on the dispute resolution map. Family mediation, in particular, has emerged from its innovative, empirical grassroots as an autonomous professional practice independent of other professional interventions in the field...