FAMILYMEDIATION

June Venters

WHAT IS MEDIATION?

• “Alternative Dispute Resolution”

AIM OF MEDIATION?

You’re notalright

I’m notalright

You’re alright

I’m alright

I’m alright

You’re notalright

I’m notalright

You’re alright

QUALIFICATIONS & APPOINTMENT OF MEDIATORS

• Qualifications and appointment of mediators [See Document 1 - Training]

WHAT ARE THE PRINCIPLES OF MEDIATION?

• Voluntary participation

–NB Legal Services Commission’s referral requirement before issuing Section 8 Children Act applications

WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED)

• Impartiality of the mediator

–NB discussions regarding referrals within the same solicitors practice

– Respect for individuals in mediation

WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED)

• Confidentiality

• Decision-making rests with the Participants

MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION

• Informed discussions and decision-making [disclosure]

• Facilitation of communication, without advice

• Confidentiality and legal privilege

NB exception for confidentiality

MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION (CONTINUED)

NB exceptions to legal privilege (waiver of legal privilege by both parties)

– Legal privilege attaches to the parties not the mediator. Accordingly if parties agree to waive privilege and the mediator declines it is for the Court to decide whether the mediator should be called

NB Rothwell v Rothwell [2008] EWCA Civ1600 [See Document 2]

VOLUNTARY PARTICIPATION

MEDIATION COURSES

[See Document 3 - Example of a Training

Provider’s Course details]

IMPARTIALITY OF THE MEDIATOR

RESPECT FOR INDIVIDUALS IN MEDIATION

IRESPECT

WE RESPECT

INFORMED DISCUSSIONS AND DECISION/MAKING [DISCLOSURE]

FOR DISCLOSURE

FACILITATION OF COMMUNICATIONS, WITHOUT ADVICE

CONFIDENTIALITY AND LEGAL PRIVILEGE

HOW DOES MEDIATION WORK?

WHO CONTROLS WHAT:

• Mediator in control of the process

• Participants in control of the agenda

HOW DOES MEDIATION WORK? (CONTINUED)

• 5 STAGES

–Establishing the arena–Clarifying the Issues–Exploring the Issues–Developing Options–Securing Agreement

HOW DOES MEDIATION WORK? (CONTINUED)

• MEDIATION DOCUMENTATION

–Willingness Test–Intake/Information Meeting–Agreement to Mediate–Session Sheet–Memorandum of Understanding–Open Financial Statement

HOW DOES MEDIATION WORK? (CONTINUED)

• Legal standing

–NB Rothwell v Rothwell [2008]

– Further guidance required

HOW DOES MEDIATION WORK? (CONTINUED)

• Differences in roles and responsibility when comparing legal advisers and family mediators

Legal Advisers

• Legal Advisers have a duty towards their own client

Family Mediators

• Family Mediators have a responsibility to help both participants equally and in impartially

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers often start by taking the history from their clients

Family Mediators

• Mediators help participants to define issues and agree an agenda without taking a history

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers advise clients on their legal position and framework of the law and procedure

Family Mediators

• Mediators focus on participants concerns first and foremost:– Legal context is

secondary

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers collect and exchange financial information in a formal discovery process

Family Mediators

• Mediators share and clarify financial information from both parties with both parties together

HOW DOES MEDIATION WORK? (CONTINUED)

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers tend to use legal terminology

Family Mediators

• Mediators tend to use non-legal language

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers may be obliged to address clients grievances about past incidents or behaviour

Family Mediators

• Mediators focus on the present and future as far as possible

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers give clients emotional support and may Counsel them in an informal way

Family Mediators

• Mediators acknowledge and mutualise both parties’ feelings, can manage their anger and help them move forward

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers draw from clients’ view of the children’s needs

Family Mediators

• Mediators seek both parents’ views and concerns about their children; may involve children

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers advise:– may recommend a

particular course of action

Family Mediators

• Mediators set out options without advising on the best option

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers in round-table meetings with their clients, legal advisers tend to take the lead

Family Mediators

• Mediators encourage dialogue between participants, intervening when necessary

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers write letters on their clients’ behalf; may take over management of the case

Family Mediators

• Mediators help participants to keep control of their affairs as far as possible

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers draft applications to the Court

Family Mediators

• Mediators do not draft Court applications

HOW DOES MEDIATION WORK? (CONTINUED)

Legal Advisers

• Legal Advisers are unlikely to cause – work “unless they are active as collaborative lawyers”

Family Mediators

• Mediators may co-mediate; draw from the knowledge and skills of other disciplines

WHAT ARE THE TASKS AND SKILLS IN THE OPENING STAGES OF MEDIATION?

• Creating a forum and positive environment

• Explaining, informing

• Questioning

• Listening

• Acknowledging

• Clarifying

• Managing conflict without suppressing it

WHAT ARE THE TASKS AND SKILLS IN THE OPENING STAGES OF MEDIATION? (CONTINUED)

• Re-framing and mutualising

• Prioritising

• Balancing

• Building trusts

• Management of case

• Summarising

COSTS

• Legal Aid

– Providing disposable income does not exceed £733.00 per month and capital does not exceed £8,000 Legal Aid will be available

COSTS (CONTINUED)

• Legal Aid

• NB If someone is in receipt of income support, income based job seekers allowance, income based employment and support allowance or guarantee credit they will be passported

[See Document 5 – Community Legal Service Keycard for calculation of Public Funding]

COSTS (CONTINUED)

• Privately funded

– Where Legal Aid is not available fees will be on a privately funded basis according to income

TIMEFRAME

• This depends on a number of factors:

– Children only Mediations• These tend to last an average of 3-5 sessions

TIMEFRAME (CONTINUED)

• This depends on a number of factors:

– All issues in Mediation• These involve children and finances and tend to

last between 5-7 sessions

– Finance Mediations• These tend to last 3-5 sessions

TIMEFRAME (CONTINUED)

• There is no hard and fast rule and much will depend on the individual requirements and complexities of the issues being discussed

• Each individual session will last approximately 1.5 hours

CHILD MEDIATION[See Document 6]

• In Mediations involving children parents often wish to involve their children in the process

• Additional qualifications are required on the part of the mediator

• Strict procedures need to be observed

• Confidentiality extends to children

• Child protection policy

CHILD MEDIATION (CONTINUED)

MEDIATION AND DOMESTIC VIOLENCE

[See Document 7]• Can they interrelate?

• It is possible for Mediation and Domestic Violence to inter-relate subject to safeguard [screening]

• Timing may vary

MEDIATION AND DOMESTIC VIOLENCE (CONTINUED)

• Nature of co-mediation may vary [co-mediation; shuttle, Caucus]

• Signposting – anger management

• Domestic violence remedies whether through the criminal or civil Courts are a short term “fix” – ongoing issues such as finance and children in relationship breakdowns still need to be resolved

MEDIATIONNational Family Mediation Helpline

NATIONAL FAMILY MEDIATION HELPLINE [See Document 8 & website

http://www.familymediationhelpline.co.uk]

THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)

• Set up on 3.4.09 in conjunction with the Civil Mediation Council HMCS set up The National Mediation Helpline

• Provides civil court users in England and Wales with information and advice on mediation

THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)

• If requested, the Helpline can put callers in contact with an accredited mediation provider who can provide low cost mediations.

• The Helpline can be accessed by phoning 0845 603 0809 (local rate) between 8.30am and 6.00pm.

THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)

• The Helpline advisers provide callers with information on the potential benefits of mediation and they will talk parties through the mediation process.

• The Helpline does not provide advice on individual cases or mediators.

THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)

• If the call is a request for a mediator then the Helpline adviser will ask a series of questions and pass the enquiry to a mediation provider accredited by the Civil Mediation Council.

THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)

• The mediation provider will then contact the parties to discuss the suitability of the dispute for mediation. If all parties agree to proceed a mediator will be appointed and a date and time of mediation will be set.

WHAT THE FAMILY COURTS EXPECT FROM PARENTS[PILOT SCHEME]

[See Document 9]

PILOT COURT MEDIATION SCHEME

• Introduced Milton Keynes 2004

• Mediators work independently

• At 1st referral & Directions Hearing likely suitable cases are identified and put on a mediation list

• On a Court Day Mediators meet with the Judge and Cafcass to confirm suitability

PILOT COURT MEDIATION SCHEME (CONTINUED)

• Assess and mediate one or 2 cases in half a day

• Can adjourn for further mediation session

• 75%-80% Success rate

• Funding [LSC]

A Court scheme is still in its infancy stage

COMPLAINTS PROCEDURE[See Document 10]

CROSS BORDER FAMILY MEDIATION

What is cross border mediation ?

• What is Cross Border Mediation?

Cross Border Mediation is a specialized form of family mediation that provides services to families dealing with international parental kidnapping issues and international custody access issues.

The E. U. Directive2008/52/EC

This Directive of the European Parliament and of the Council refers to ‘certain aspects of mediation’.

• The EU would like mediation to be promoted by member states

• The directive seems to arise from recognition that mediation needs some structural support if it is to be effective, particularly in those difficult disputes between people in two different member states.

• It applies to ‘mediation in cross border disputes’ (Preamble, para 8).

• It applies to any mediation, whether freely chosen or ordered by the court (or even judicial mediation) (Article 2, 1).

The E. U. Directive2008/52/EC

• It is careful not to create any new rights

• ‘it should not apply to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law.

• Such rights and obligations are particularly frequent in family law and employment law’ (Preamble, Para, 10).

What should we be considering in Cross Border Disputes

• Culture

• Language

• Law

• Jurisdiction

Practical Issues

• Venue

~ Consider Telephone conferencing

~ Consider Video conferencing

Practical Issues

• Attendees

~ ? Interpreter

~ ? Lawyer

Practical Issues

• Nationality of Mediator

~ Careful consideration should be provided to ensure that the Mediator is and is seen

to be neutral

Enforceability of Agreements made in Cross Border Family Mediations

• The EU Directive is clear that:

• Mediation should not be regarded as a poorer alternative to judicial proceedings’. It goes on, ‘in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties’ (Preamble, Para 19). In other words, if mediation is going to be effective, its outcomes have to be seen as equally worthy of state support.

So this is about enforcement.

Enforceability of Agreements made in Cross Border Family Mediations

The Article itself states:• ‘Member States shall ensure that it is possible

for the parties, or for one of them with

• the explicit consent of the others, to request that the content of a written agreement

• resulting from mediation be made enforceable’ (Article 6, 1).

CONFIDENTIALITY

• The basic principle of confidentiality is preserved by the EU Directive

CONFIDENTIALITY

• Article 7 calls on Member States to:

‘ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial proceedings or arbitration regarding information

arising out of or in connection with a mediation process’

CONFIDENTIALITY• Scotland remains the only country in the EU to have

put such legislative protection in place (Slovenia may now have done so too).

• The Civil Evidence (Family Mediation) (Scotland) Act 1995 provides that ‘no information as to what occurred during family mediation to which this Act applies shall be admissible as evidence in any civil proceedings’ (1995 Act, S.1 (1)). This Act contains the usual exceptions for child protection, information relating to the commission of a crime and the existence of a contract.

CONFIDENTIALITY

• If everyone involved apart from the mediator agrees, the evidence is admissible (S.2 (1) c).

IMPACT OF E U DIRECTIVE

• the EU has determined that:

Mediation should not be a ‘poorer alternative’ to the court but sit alongside the justice system as a respected and respectable way for people to resolve disputes.

THE FUTURE OF FAMILY MEDIATION GENERALLY

THE FUTURE OF FAMILY MEDIATION GENERALLY

• The UK Government is clear that Mediation is to be encouraged and this is evidenced by the approach to Public Funding of Family cases and the Courts and the National Family Helpline

• The EU Directive is clear that it is to be supported cross border