The Children and Families Act 2014 in England and Wales is focusing more attention on the role of family mediation in the family justice system. Family mediators have been given greater responsibility to encourage consideration of non-court dispute resolution processes before application is made to the family court, and to assess the suitability of mediation in particular circumstances. In explaining non-court dispute resolution and in managing the mediation process appropriately, family mediators need to combine awareness, empathy and a high level of knowledge and skills. The nature and scope of the mediation process and requirements for practice have come under sharper scrutiny. Following the recommendations of the Family Justice Review, the McEldowney Report and the Scoping Study led by Dr Stan Lester, the Family Mediation Council has issued revised standards and requirements that cover many aspects of family mediators’ training, supervision, accreditation and professional development. 1 Writing about the development of family mediation in the context of these evolving systems is like painting a Forth Bridge that keeps getting longer, or as Angela Lake-Carroll remarked, ‘painting the Forth Bridge while an earthquake is going on underneath!’
This edition is more than an update of the previous one, because this is a time of major change in the whole family justice system and in the provision and regulation of family mediation. Despite the major setbacks resulting from LASPO, 2 there are fresh challenges and opportunities. Recent research findings, in particular the Mapping Paths to Family Justice study, 3 show the need for greater flexibility in designing dispute resolution processes and approaches that cater for different needs. A standardised model of family mediation cannot possibly meet the diverse needs of couples and family members from different cultural backgrounds who come to mediation at different stages of separation or divorce or other family crisis, in widely varying circumstances. If the mediation process is not tailored to their circumstances and needs, it is likely to break down, if it starts at all. Mediators need to make careful assessments of mediation’s suitability, 4 manage different levels of conflict and provide facilities and skills for different constellations of family members. Recent experience shows that while adhering to the basic principles of mediation, a range of approaches can be developed for different stages and levels of conflict, not only in private family law disputes but also in other areas, including some public law child cases and hybrid family/civil cases. 5
Mediation tends to be seen as a problem-solving process, but family problems are complex and solutions rarely simple. Mediators learn from hard-won experience and from other sources of insight. Non-scientists like me can see parallels between mediation and chaos theory and the relatively new science of complexity theory which distinguishes between simple and complex systems. The family justice system is putting greater emphasis on private ordering, with clear expectations that most separating and divorcing couples will resolve issues themselves, with the help of mediators where needed. However, as shown in the chapter on family mediation research, there can be risks and disadvantages in private ordering, as well as significant benefits when it is suitable and practised well. 6 With the trend away from court-dispensed justice towards participative decision-making and collaborative practice, we may find, like the pianist and conductor, Daniel Barenboim, co-creator of the West–Eastern Divan orchestra, that ‘the inclusion of all parties in a dialogue … is not a guarantee for perfect harmony, but it creates the conditions necessary for co-operation‘. 7 Barenboim also reminds us that ‘spontaneous realisation’ is possible only with ‘all the repetitions and the familiarity resulting from intense study’. 8Mediation practice can be enhanced by better understanding of different systems of thinking – intuitive and analytical, fast and slow 9 – and even by comparing the structure of mediation with musical structures. Communication needs language that is imaginative, as well as clear. 10 Poetry and visual arts help us to see with fresh vision, while even limited scientific knowledge can help us to make new connections in useful and practical ways. 11
Mediation experience over several decades shows that a great deal remains to be explored and considered. There is greater recognition of the need to listen to children and young people in helping parents to make arrangements that take account of their children’s needs, feelings and ideas, without putting pressure on the child. 12 Exchanges with colleagues in other countries enrich our own developing practice. I have been very fortunate in having opportunities to take part in conferences and training workshops in many countries, from the French West Indies to Canada and the US, South Africa, Russia and Kazakhstan and European countries. Irrespective of culture and language, mediators all over the world find that they have the same spirit and share intuitive understanding. A global network of mediators is needed to develop international family mediation in relocation disputes and child abduction cases, using mediators specially qualified in this field. The Hague Conference GuidetoGoodPracticeonMediationinthecontextofthe1980ChildAbductionConvention was published in 2012, while International Social Service has recently published a guide to international family mediation for parents and professionals. 13
This new edition is designed primarily for family mediators in England and Wales, whether they are highly experienced practitioners or those embarking on training. I hope it will also be of interest to members of other professions who work with families within or outside the family justice system, as well as to family mediators in other jurisdictions At a time of bitter struggles and conflicts in many parts of the world, we need negotiators, peace-makers and young people who are trained in conflict resolution, not in waging war. May this book, in however small a way, stimulate reflection and discussion, offer some fresh thinking and encourage the co-operative search for conflict resolution that all mediators endeavour to support.
1 See Chapter 14.
2 Legal Aid, Sentencing and Punishment of Offenders Act 2012.
3 Barlow, Hunter, Smithson and Ewing Mapping Paths to Family Justice – Briefing Paper and Report on Key Findings (Universities of Exeter and Kent, June 2014), chs 1 and 13.
4 See Chapter 3.
5 See Chapter 4.
6 See Chapter 13.
7 Barenboim Everything is Connected – The Power of Music Weidenfeld and Nicolson (2008), p 59, ch 4.
8 Ibid, p 58.
9 See Chapter 14.
10 See Chapter 6.
11 See Chapter 2.
12 See Chapters 7 and 8.
13 See Chapter 15.
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