Family Mediation: A Separate Category of Mediation?

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Summary

Hence, it defeats the whole aim of mediation which is to give all parties equal opportunity to freely communicate and try to reach an agreement themselves without any form of intimidation. Thus concern has been raised in some quarters that victims of domestic violence should not be talked into resorting to mediation against their will in order not to put themselves at risk. 

It is however important to point out that developing research finding has pointed out that not all cases where there has been domestic violence will be unsuited to mediation. It rather depends on the nature of the violence and the underlying factor or dynamics between particular couples. The decision has to be made in consultation with professionally trained mediators. It is worth pointing out that family mediation can be seen as a separate category of mediation because mediation is normally used in settling commercial disputes.

However, there does not seem to be clear case to regard family mediation as not a category of mediation despite the prevalence of domestic violence. Thus it begs the question of whether family mediation can be assimilated into the general mediation or whether if it is a different class of mediation with its peculiar nuances. 

Against the backdrop of this question, the paper would foreground the meaning of family mediation and its purpose. It goes on to scrutinize the statement by highlighting the differences and similarities of family mediation from the usual mediation. The paper will examine some of the arguments for and against. It will then capture the usual models of mediation and theories behind it and try to illustrate how family mediation can or cannot be assimilated into the parameters of the usual mediation models. The paper has employed the use of both primary and secondary resources. 

The conclusion touches on the proposition that family mediation in certain circumstance cannot be assimilated into the general parameters of the usual mediation models. 

Introduction:

Litigation used to be the most favoured and preferred means of resolving conflicts generally.  Many saw it as the only reasonable means of settling disputes. However, over the years, alternative dispute resolution means have been explored and adequately developed. These alternative means are being frequently resorted to in settlement of disputes, be it legal disputes, family matter, neighbour differences, business conflicts or differences between employees at work.  Some of these alternative means are negotiation, Mediation, conciliation and arbitration. This discourse would, however, focus on family mediation.

Theoretically, Mediation is a process whereby a neutral third party facilitates two or more parties in dispute to communicate with each other to make them reach an agreement voluntarily. On the other hand, family mediation entails facilitation of family members who are in disagreement with each other to communicate among themselves to foster a qualitative transformation of human interaction. In many cases, family mediation involves couples who are about to get a divorce or whose relationships have broken down near irretrievably or divorced parents. 

Snapshot of Mediation

In United Kingdom, the courts have endorsed the use of ADR in general. However, on different occasions, the courts have stressed the importance of mediation in particular and the flexibility it provides. This is highlighted by the case of Halsey v Milton Keynes General NHS Trust [2004] where the court stressed the importance of Mediation. Generally, mediation gives a great deal of control to the parties in resolving their disputes. Its key advantage is that it is a flexible, voluntary, speedy, and cost effective way of resolving disputes. Additionally, Mediation is confidential and has become an effective alternative means of resolving conflicts.  It has in fact helped to reduce backlog of cases in litigation. 

It is significant to point out that in some countries like China, Australia, Nigeria and Japan, mediation may be mandatory and one of the normal ways of settling disputes. Hence, disputants are urged to resolve their disputes in respectable manner in order to remain in cordial relationship with one another and reduce the backlog of the courts dockets. 

Scopes of Matters Covered in Mediation

Mediators may mediate disputes in a variety of spheres, such as commercial, legal, diplomatic, matrimonial causes, workplace, community, minor offences and family matters. However, disputes arising from mental health, Wills, Public policy, domestic violence and capital offences are not suited to mediation.

Against the backdrop of the foregoing, one can safely say that family mediation can be separated from category of mediation.

Meaning of Family Mediation 

To buttress the point made above, the family mediation council defined family mediation as ‘a process in which persons involved in family breakdown, whether they are a couple or other family members, appoint an impartial third person to facilitate them to communicate better with one another and reach their own agreed and informed decisions concerning some or all of the issues relating to separation, divorce, children, finance or property by negotiation.’ 

It is against this backdrop that, Mnookin et al suggests that family mediation is bargaining in the shadow of the law because it takes some of the aspects of the law that impose substantial doctrinal constraints, especially when it comes to the interest of children custody and visitation.  Judges exercising judicial power, are said to have responsibility to determine who should have custody and on what conditions. Such judicial power to make binding pronouncements is lacking in mediation as parties must necessarily mutually and voluntarily agree on or accede to suggested solution to their disputes before it becomes binding on them. These situations, more often than not, results in emotional trauma and stress among the members of the family most especially on the children. 

Hence Marian Robert reveals that Family mediation became necessary and gained prominence due to the surge of divorce and separation in England and wales.  Little wonder the Judiciary began to encourage and support the use of mediation in child-related issues. This can be seen in the case of Al-Khatib v Masry where the court aptly emphasised the need for disputing partners to resort to mediation especially when children are involved.  

Giving backing to this, the family division issued a practice direction in 2011, wherein, separating couples are now referred to compulsory mediation assessment to see if the dispute can be resolved before proceeding to court. 

To reiterate, family mediation covers issues of separation and divorce of parents. It handles the emotional stress of the members of the family and most especially for the children. Besides resolving disputes, it ensures that adequate arrangements are made to cater to disadvantaged parties after separation. A family mediator who assists both parties to reach an agreement voluntarily achieves this. 

It is to be noted however, that there are things that cannot be mediated. These includes mental health, Wills, public policy, where a party has an ulterior motives such as using or wishing to use mediation to gather more information and domestic violence.

From the foregoing, it can be easily seen that family mediation apart from being voluntary, gives parties a lot of privacy and shields their issues from the public unlike litigation that is public. It has however been argued that family mediation is unsafe and does not lead to fair agreement in divorce proceedings. 

Differences between family mediation and the usual mediation 

It is significant to point out that many victims of domestic violence have argued that mediation is unsafe and therefore, cannot reach fair agreements. However, Ikechukwu Onuoma pointed out that mediation is an empowering process, and it is better than litigation. On the contrary, mediation critics believe that mediation takes away parties choices and thus replicates the dynamics of the abusive relationship.

Some mediation experts agree that family mediation can, in some ways, be assimilated into the usual mediation models.  Those who hold this view do not seem to see anything drastically different in the way and manner family mediation is conducted. They believe all mediations are the same, whether family or not. However, a critical assessment of family mediation quickly reveals that it cannot be easily assimilated into the general mediation models. This, fundamentally, owes a lot to the unique way family mediation is conducted.

Firstly, Family mediation is a form of mediation in which the mediator helps couples at any stage of separation or divorce to consider the options available to them. The mediator helps them to communicate better with each other in reaching a decision jointly unlike the usual mediation which is used for settling commercial, parties in workplace, community, legal and family matters.

Additionally, family mediation is more regulated by the 1996 Act and has more rules. This is because it is distinct and different from the usual mediation. More so, because of the multi-layered problems in family, children and property, family mediation requires a more extended period and series of meeting to sort out such family issues. 

Mnookin et al. stated that in family mediation, the issues presented are often very complex; hence, as a mediator, his role is carried out from a broad perspective to accommodate all underlying issues. Such a broad approach is recognized in the definition of family mediation offered by the Academy of Family mediators.  

Mnookin et al. further stated that the role of the mediator in family mediation includes: reducing the obstacles by communication, maximizing the exploration of alternatives and addressing the needs of those affected by the dispute. However, in the usual mediation, such a broad approach, which accommodates other parties’ interest, is not lacking.

On the other hand, in family mediation- the family would still maintain control of the content of the mediation session whilst mediators would control the process but the process would be less structured and more varied than the traditional community mediation model.  

Conversely Robert Bush et al, opines that in mediation, parties may not be able to agree on the actual problem to discuss, the exact nature of disagreements, or even what is wrong and who has the problem unlike family mediation where parties can easily spot the exact nature and points of disagreement.

However, it has been argued that family violence and abuse should not be mediated.  It is important that mediator understands the dynamics of domestic abuse and its impact on mediation. 

It is significant to point out that many victims of domestic violence have argued that mediation is unsafe and therefore cannot reach fair agreements. However, Emilia Onyema pointed out that mediation can be an empowering process and it is better than negotiation, litigation and adjudication. Furthermore, mediation proponents counter that mediation takes away parties choices and thus replicates the dynamics of the abusive relationship.

On the contrary, Ann Milne argued that in most cases, mediation fails in domestic violence cases because of the number of inadequately trained mediators and this needs to be remedied. Rather than framing the question, should mediation be used in domestic violence? The issue could be what process can be developed that will best help individuals that have been victims of domestic violence avoid court process?  This leads us to the issue of system design- can we design a dispute resolution process that can address the concern that has been noted by both opponents and proponents of mediation? Of course this, in the opinion of this writer, is possible.

Flowing from the above, it can be seen that family mediation is a separate category of mediation. However, owing to its complexity, it cannot be assimilated into the general parameters of the usual mediation models. Nevertheless it depends on the mediator and the nature of the problem. If the issues involve divorcing couples with children or domestic violence, a skilled mediator may then mix all the models to achieve and facilitate a settlement.

Elements of family mediation

Domestic Violence and Mediation

Mnookin et al. reveals that creating a family relationship and ending it has evolved from stringent statutory requirements and judicial scrutiny to more private choice. Be that as it may, this private choice, which is mediation, has thrust up the question bordering on whether domestic violence should be mediated. This question springs from the fact that many victims of domestic violence have argued that Mediation is unsafe and therefore, cannot reach fair agreements. However, it is argued that Mediation can be an empowering process, and it is better than negotiation, litigation and adjudication. Furthermore, mediation opponents counter that Mediation takes away people’s choices and thus replicates the dynamics of the abusive relationship. 

But from whatever point of view one looks at it, settlement of domestic violence issues through mediation lies with the determination and willingness of the parties to do so. What the mediator needs to do first, is to screen for domestic violence and make a proper enquiry about children if there are any. This is very important because children are most affected by domestic violence as they are psychologically traumatised. 

Mediation Process & Parameters of the usual mediation

There are four models of mediation, which are Facilitative model; Evaluative, Narrative, Transformative and Therapeutic model though Mediation tends to follow two main forms, which are mostly used in the United Kingdom.  These two are facilitative mediation and evaluative mediation, also known as directive mediation. Parkinson talked about the Ecosystem model.  Family mediation adopts all these models. There is also the Haynes and Coogler model, which is sometimes referred to as Bromley model, which is a theory behind the models. Facilitative model is based on theory about people being able to make their own decisions while evaluative model assesses the problem from its underlying cause before solving it.  

The Mediation Process according to John Haynes

Haynes theory is an unstructured type of mediation. He contends that negotiation can take place if both parties to a dispute agree to resolve it by engaging in a process set up to settle the dispute. Subsequently, mediation takes place if both parties admit that there is a dispute and engages in mediation process. However, if one party asserts that there is no dispute then the other party has no other option than going to court. This is also referred to as Labour intensive model. This type of model does not have private session as it concentrates on joint session.  Owing to this lack of private session which in most cases is necessary for parties to freely confide in the mediator, one would say that this model is not suitable for family mediation and therefore cannot be assimilated into it.

Cooglers or Bromley Model

Bromley model is more structured; it gives a great deal of power and authority to the mediator to take charge of the process. This way, the main issues are concentrated on, and the mediator ensures that the entire process is fair and just. The mediator is in complete control and tries to gear the parties up to resolve their dispute. It is significant to point out here that, the mediator utilizes the facilitative approach by trying to help parties to reach an agreement on their own. The mediator makes a note and summarizes issues after meeting each party, during the private and joint sessions. Moreover, the mediator emphasizes the importance of confidentiality.  

The Bromley model has a blend of everything and this writer, even though argues that family mediation is in a class of its own, concedes here that can be assimilated into the Bromley model.

Bush and Folger Transformative model

Folgar and Bush stated that mediation is transformative and enables parties to easily recognise their problems and the point of disagreement. This leads to mutual respect.  

Thus, it is best suited for on-going relationship. The mediator aims to help the parties to improve their communication so that they can resolve their own dispute. Bush and Folger model, which bears resemblance to the Bromley model, is transformative. This is because it allows the parties to express their feelings. This model tends to suit family mediation and a mediator may want to appropriate it into the family mediation process so as to sustain parties’ relationship. 

Narrative Model: 

This is based on the idea that mediators who perceive the process as storytelling invites disputants to tell their story to help them towards a shared understanding. This is used in both family mediation and the usual mediation.

Therapeutic Model of divorce (Problem solving)

This model is informed by therapeutic theories. It assumes that the parties cannot effectively deal with their issues until emotional issues are resolved. It is a model that seems to underpin family mediation as emotional concerns in family mediation is central to the success or otherwise of it. This makes the model suitable to family mediation.

Similarities and differences between Family mediation and The Usual Mediation

The basic similarities of family mediation with the usual mediation are that there are both voluntary, transparent and it is party-driven.

Moreover, both models follow a well-defined structure in order to get data and define the problem. However, the structures deployed are quite different. In both models, the mediators follow the essential structure, by making a summary in order to restrict the issues within the structure. The mediator employs a divergent approach in order to reach the core issues and define the dispute.

The Bromley model is closer to the facilitative mediation because it seeks to assist communication between parties, not only does it recap what was said by two parties during the private or individual session, it also enables the individual to have a direct communication. It is worth pointing out too that Haynes model is similar to evaluative mediation whilst Bromley model fits into facilitative kind of mediation.  

Due to their dissimilar models, it is not possible to say one is better than the other. In the grand scheme of things, there are different structural arrangements that can frame the mediation process and no one model is best for all purposes.

Conclusion

There is no one right way to mediate. What is fundamental is for the parties to be guided and not controlled to reach a resolution. The mediator or practitioner must give his or herself permission to develop the model and style that brings out his or her strengths and values. In other words, the mediator should be able to assist; dynamic, flexible and evolutionary in the way and manner he or she conducts the process.

But among the various model of mediation discussed in this work, the Bromley model seems more humane and apt to promote the realization of a constructive and fair process and preserve dignity, privacy and autonomy. This is because, the Bromley model, by adopting a facilitative approach, allows the mediation process to reach effectiveness since it not only tackles dispute through a determined way but also responds to the necessities that clients as human beings have.

 The facilitative model discussed, allows mediators to give direction but not advise to the parties. This is because the mediator’s duty here is just restricted to facilitation. This means that parties cannot receive help from mediators by way of advice when they need it. However, it assimilates the model but depending on the mediator, after identifying the problems of the parties can decide to go from facilitating to evaluative, it is because of this that family mediation adopts a mixture of various models so as to help parties optimally in resolving their disputes. 

From the foregoing therefore, it is not difficult to see why many agree that family mediation is a genre, which is different from the usual mediation and therefore cannot be assimilated into the latter. However, it is undeniable certain characteristics remain the same whatever category of mediation that is referred to. These characteristics border on voluntariness and the freedom given to the parties to reach solutions themselves. The role of the mediator is just to facilitate the process. 

ENDNOTES

Legislations

Access to Justice Act 1999.

 Civil Procedure Act 1996.

 Code of Practice For Family Mediators, 2009.

 Children Act 2004.

Domestic Violence and Matrimonial Proceedings Act 1976.

Family law Act 1996.

Family Proceedings Rules 2010.

Mediation Rules 2014.

Family Mediation Council: Code of Practice for family mediators, 2016

 

Cases

 Al Khatib v Masry [2004] EWCA Civ 1353.

Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002.

 Henley v Henley [1955] 1 All ER 590

 PGF II SA V OMFS Company 1 limited  (2013) CIV 1288, (2013) All ER New law journal

Swain Maison v Mills and Reeve (2012) EWCA Civ  

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