How to Choose The Right Family Mediator

In this blog, FLiP director James Pirrie looks at the different styles of family mediation and how family mediators with a therapeutic background may take a different approach to a “traditional” family mediator with a legal background.  

Most Wednesdays in the late 80s and early 90s, I would cycle from Kings Cross to Marylebone for a volunteer slot at the Institute of Family Therapy’s mediation service, sitting at the feet of giants such as Margaret Robinson, Margaret Adcock and indeed Dominic Raeside, (a significant part of the reason why I then asked to join the firm that is now FLiP).  Arising from my family mediations since then with Ruth Smallacombe and more recently, Bill Hewlett, I wanted to share something that has occurred to me which is how therapeutic family mediators do it differently.

It has worried me because those of us who work with a client as a lawyer and then make a referral to family mediation may gauge success in a particular way.  Often what we are looking for is a set of structures that are convertible into a court order. I fear that too often we notice that there are things missing from the therapeutic family mediator’s memorandum of understanding like:

• A child maintenance order that is different from the likely CMS award
• Whether there is a 28(1A) bar on the spousal maintenance
• Or how a surplus or a deficit on the hoped for sale price might work out.

(And yes, I know that there are some family mediators from a therapeutic background who are all over this stuff too! But that is just my point – the diversity under the umbrella “family mediation”).

As lawyers we love nailing down future contingencies: who is going to take the risk of things not working out as we assume: it is a large part of where we focus our energies. What I would like to question is whether we are wrong to treat these legal asks as part of the reasonable delivery from colleagues in this industry doing the work from a different perspective.

If you work with Bill Hewlett, for even a short time, you will hear a lot about the parental alliance. It is about owning the reality that each parent best supports their child by supporting the other parent: the parents are the pillars at either end of the bridge, each needing the other to be strong and to operate as a unit if, as parents, they are to provide the best for their child.

So in this approach, the future contingencies may well be resolved not because they are hammered out in sub-clauses in a court order but because there is an ethic of mutual support that is tapped into when there are changes or challenges that need to be managed.

For example, a lawyer negotiating a deal might automatically ask for a school fees order – a binding obligation to pay, to protect the child’s education against a downturn in the finances, when it might be harder to pay. In negotiations, we might advise the payer “well why not, if you are intending to pay anyway?”  A mediator, operating a more therapeutic model would treat the problem very differently. “What is causing your worry that they wouldn’t pay, if you are truly in this to get your child through this together?” might be their avenue in the appropriate case. The therapeutic approach might be seen more often as seeking to build the partnership and habit of each parent giving of their best and thus having the relationship, communication and problem-solving skills to sort things out. The legal model might be more about managing the situation by rules seeking to cover off either party starting to cause difficulties or operate selfishly. So if earnings reduced, the mediator would expect the parties to find a solution (or return to mediation for support) and the lawyers might on the one hand be reaching for the application for enforcement and on the other for the application to vary the order and remit arrears (and risking another couple of terms’ school fees in the process).

If these mind-sets become self-fulfilling, as lawyers we might pause to question whether the lawyer’s agenda should trump the transformative agenda. Of course it is “horses for courses” – not all parents are able to make the shift to that of reciprocal support – but as my colleague and FLiP’s Head of Mediation Dominic Raeside puts it “I am trying to offer a collaborative arena where separated couples can re-engage in the task of making good decisions consensually; we are all aware that the court remains available to them to make decisions on their behalf if this challenge should prove too great”.

So what are the take-aways?  Perhaps variety, selection and respect:

• first that family mediators come from a broad church – there are lots of us doing this work in very different ways – and many of us offer different sorts of family mediation. You can be assured, however, that all family mediators undergo extensive training and work within a Code of Practice which outlines the aims, objectives and scope of family mediation, and the standards expected of family mediators.
• the second follows the first: that there is a real skill as the advising lawyer in helping your client towards the right family mediator – the conversation between lawyers shouldn’t be as simple as “mediate?  Ok so who shall we use?”
• the third is about having respect for each other’s skills and work: there are many different conclusions that separating clients might seek and probably even more ways of reaching them. We should not assume our way is the best and should instead be reaching out to learn and to synthesise – when we are truly focused on doing our best by our clients we still have lots to learn from each other.