Researching family mediation:  challenges and opportunities

This blog post was written by Mavis Maclean CBE (Faculty of Law and St. Hilda’s College, University of Oxford).

Researching how other people set about their daily work is, in my experience, endlessly fascinating but very nerve wracking…. the chances of getting everything horribly wrong are high. But the hope of understanding a bit better how things work offers at least a chance of fresh thinking about how to make life easier for the people in the middle of the difficult process of family separation. So we try.

My colleague John Eekelaar and I published a book earlier this year called” Lawyers and Mediators: the Brave New World of Services for Separating Families”, based on observing the work of family solicitors and mediators, and ended up suggesting that they have more in common than you might think. Both want to help people to find a fair and informed agreement and to avoid or resolve conflict. Both offer general legal information and, we think, sometimes advice. So perhaps in the context of a bewildering and costly market place of different services, we ask if it  might be possible  to offer a one-stop shop, offering legal help with mediation where needed,  in the hope of it being both affordable and helpful.  We had an enthusiastic response from the legal world, but less so from the mediators who do not come from a legal background, even though we suggested that this kind of  legally assisted mediation could be offered by lawyers with appropriate mediation training, and by mediators with appropriate legal training. Mediators are a relatively new profession, full of ideas, supported by government, but have so far failed to attract the divorcing population as a whole,  and still have many different ways of working and quite “robust”  internal debates about the way to go.  Our hope is that setting out what we saw might help to move some of these discussions on,  and to focus more clearly on the needs of people who are  seeking help following the legal aid cuts in private family law set out in LASPO [1].

Mediation did not originally set out to offer legal advice or to be a substitute for legal advice, but to add an additional service to those already available. For those with money there is now a wonderful range of kinds of help, including tax advice, parenting advice and support, couple counselling, mediation, lawyer-led negotiation, collaborative law, and arbitration in finance and child arrangements, all of which can be used in different combinations at different points on the journey, all the way to a judgment in court as a last resort. Soon we may even see a move from ADR (alternative to court dispute resolution) to ODR (online dispute resolution) .

But the story is very different for those without money to spend.  Unless there is evidence of domestic violence or a child protection issue (or, very occasionally, an exceptional need involving human rights or international issues) there is no longer any public funding for legal advice or representation in private family law matters. Think what that means if your financial problems are about debt not assets, there is no matrimonial home, you have no job, English is not your first (or even second or third ) language, or there are health or mental health issues , you are in dispute over the children, and  the children are unhappy or unwell. Mediation did not ask to be the only free service, but it is, and is in practice only available to people whose partners will join in. So we need to know what we can expect from it and what we can’t.

When I gave the Henry Brown Lecture to the Resolution Dispute Resolution Conference in Nottingham almost three years ago and apologised for my ignorance of the practice of mediation, the mediators responded with great generosity, inviting me to come and see. We are hugely grateful to those who offered to let us sit with them, and learn at first hand what happens in a mediation session. We saw patience, skill, and determination in leading people forward to taking the next step in sorting out their separation. But we also saw gaps where legal advice could have offered a reality check, clarifying the kinds of arrangement that would be acceptable to a court where the certainty of a consent order is needed, showing what is possible and perhaps even enabling parties to avoid a problem becoming a dispute. We think that government is asking too much of the mediators. An early information session setting out the legal options for both parties ,together in suitable cases, could help.

Professional boundaries are becoming blurred in a number of  professions too. Nurses prescibe and take part in surgery, clinical assistants with 2 years of medical school assist in general practice, even fire service personnel are now being trained as paramedics …soldiers were invited to teach . In family justice, lay McKenzie Friends may charge for their services and apply to speak for their client in court, judges manage cases and encourage settlement rather than simply adjudicating, lawyers may train to become arbitrators or mediators. And when is lawyer a lawyer? When on the Roll as a solicitor or called to the bar and insured? What happens when someone else offers legal advice? This is not one of the activities formally reserved to members of the two accredited legal professions. A mediator with legal uplift does not seem an impossible development. Especially if we focus on helping those in need.

But we are only researchers…………only too aware of how difficult it is to do research, to communicate our findings, and to translate them into positive proposals for policy and practice.

Mavis Maclean , Oxford

October 2016

[1] Legal Aid Sentencing and Punishment of Offenders Act, 2012