Mediation and safety – basic principles

Here is a scenario

A couple have separated for several months. They have two children who live with the Mum. Before separating the Dad pushed the mother and once hit her during an argument, but the police were not involved and the Mum did not tell anyone. The Mum still finds the Dad to be a bully. The children see the Dad, but the Mum finds him unreliable. The Dad finds the Mum messes him around. He accepts that they had arguments, but he says that in his view the Mum is not scared of him and that she gave as good as good as she got. They communicate badly on the doorstep and through Texts. The Mum doesn’t think the Dad would deliberately harm the children, but doesn’t like the sound of his new partner.

They both want to sort out the arrangements for the children and some financial issues.

The Mum would have been eligible for Legal Aid before April 2013, but has been told that she will only get Legal Aid for Mediation now.

Could mediation be suitable?

Could Mediation be a safe process?

Basic Principles

Lets start with the basic principles of Mediation;

• Mediation isa voluntary process
• It is a confidential process
• it is a safe process
• The mediator is neutral and will help the couple to find their own solutions together.

Safety means the safety before during and after each mediation meeting.

Mediation takes place in accordance with the Code of  Practice of the Family Mediation Council

Click here for the Family Mediation Council Code of Practice

What does it say about safety for participants in mediation?

5.8 Abuse and power imbalances within the family

5.8.1 Mediators must be alert to the likelihood of power imbalances existing between the participants.

5.8.2 In all cases, mediators must seek to ensure that participants take part in the mediation willingly and without fear of violence or harm. They must seek to discover through a screening procedure whether or not there is fear of abuse or any other harm and whether or not it is alleged that any participant has been or is likely to be abusive towards another. Where abuse is alleged or suspected mediators must discuss whether a participant wishes to take part in mediation, and information about available support services should be provided.

5.8.3 Where mediation does take place, mediators must uphold throughout the principles of voluntary participation, fairness and safety and must conduct the process in accordance with this section. In addition, steps must be taken to ensure the safety of all participants on arrival and departure.

5.8.4 Mediators must seek to prevent manipulative, threatening or intimidating behaviour by either participant during the mediation.

Comment

• Mediators must screen for domestic abuse
• Mediation can take place when there has been domestic abuse subject to certain conditions
• The mediator must be satisfied that the one who has suffered the abuse is willingly taking part and that they can talk freely within the process and will not be intimidated or unsafe within the process.
• The mediator must consider safety arrangements including staggered arrival and departure any separate waiting areas.
• The Mediator should give information about specialist support services.

Other relevant parts of the code 

5.7.5 Where mediators suspect that any child is suffering or likely to suffer significant harm, they must advise the participants to seek help from the appropriate agency. Mediators must also advise the participants that, in any event, they are obliged to report the matter to the appropriate agency

5.7.6 Where mediators consider that the participants are or are proposing to act in a manner likely to be seriously detrimental to the welfare of any child of the family or family member, they may withdraw from the mediation. The reason for doing this must be outlined in any further communication.

 5.5.3. Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated or where mediators suspect that a child is suffering or is likely to suffer significant harm, mediators must ensure that the relevant Social Services department is notified.

5.5.4 Mediators may notify the appropriate agency if they consider that other public policy considerations prevail, such as an adult suffering or likely to suffer significant harm.

5.6.4 Privilege will not apply in relation to communications indicating that a child or other person is suffering or likely to suffer significant harm, or where other public policy considerations prevail.

 Comment

• The code is very clear and full in that the mediator is obliged to report child protection concerns.
• The Mediator is also able to breach the confidentiality of the mediation for the protection of an adult.

Agreement to Mediate 

Before the mediation can start, the participant receive, read and sign the “Agreement to Mediate”. This is the formal contract which is the basis of the mediation. The Agreement that I use, is the Resolution precedent (with a few amendments). This states;

Where any person (particularly a child) is at risk of significant harm I have a duty to contact the appropriate authorities.

At the start of each session I remind the couple of the terms of the agreement. I keep my responsibilities under review during each session and at the end of each session, I again review whether mediation remains suitable.

How can mediation safely take place?

I recently attended an annual updating course for mediation supervisors. One discussion point was a piece of research which will shortly be published, where an unacceptably large proportion participants said that they had not been asked about domestic abuse. (which could also mean that they had been screened in such a way that they did not realise that they had been screened for safety risks!)

There was an account of one person who said she had found mediation unsatisfactory because of past abuse. She felt intimidated throughout and agreed to everything the other wanted.

The previous year, I attended a similar event where a number of risky scenarios were outlined by the trainers. I would have reported them all, but there was a good deal of prevarication within the room.

It is also the case that the Legal Aid Agency will pay mediators to undertake joint assessments for the suitability of mediation. In other words both of the couple attend at the same time. Now, the intention is that the mediator will speak to both separately about domestic abuse (whilst the other waits outside). Personally, I don’t see how this can be acceptable. The abuser knows what is being asked of the abused and the abused knows that the abuser knows what she is being asked. The abused knows the abuser is likely to ask them what they said (when they leave, probably together). As I say, I don’t think this is acceptable or safe, which is why I always undertake separate meetings.

So the assessment meeting is crucial.

I have to declare an interest here. From the very start of my legal career, I was assisting victims of domestic abuse. My role in the Firm where I undertook my training contract (then called Articles), was to be the first port of call to those who needed emergency protection. This continued after I qualified, and was a very significant part of my practice for many years, eventually being overtaken by complex children cases (but often including domestic abuse). I am therefore used to abuse and potential abuse, and to putting vulnerable clients at ease and asking them difficult questions and to getting to the heart of what has happened. Then to evaluate my clients information (considering evidence issues) and advising. To be ale to gather a lot of difficult information in a short period of time requires skill.” Um”, “not really” “not for ages” “well, no” mean “yes” and mean further questions need to be asked. You can’t screen in a way that the person being screened doesn’t realise! As a professional, you provide a safe environment, you establish a rapport and you ask questions, and then you ask more questions. I explain to my mediation clients the need to undertake a risk assessment and the reasons why. We then have a frank discussion.

It is absolutely essential that clients are honest with me, so that I can properly assess the viability of mediation as a process.

I tell my clients that the voluntary nature of mediation is three way. Both of the couple have to want to do it. Also, I have to want to do it as well, because I think that it will be safe AND there is a reasonable chance of getting somewhere.

Choosing the right model of mediation for a family

Mediation is a flexible process, and the mediator should attempt to personalise the process to the couple and their issues, Where there has been abuse, the following adaptations could be made:

• Staggered arrival and departures and separate waiting areas. (the vulnerable one could have a friend sit with them in the separate waiting area)
• Use of shuttle mediation. In this model, each person has their own room and the mediator moves back and forth between.
• Use of the family hybrid model of mediation ( Link to a fuller explanation of the family hybrid model of mediation) This is more for cases involving finance, but one feature is that each is accompanied by their Solicitor and are based in different rooms.
• <strong>Safety arrangements to be put in place before the mediation starts. For example the Solicitors could put in place (by agreement) Court Orders which give protection or the parties give formal promises to the Court, for example, not to use or threaten violence to each other.
• Third party evidence being provided about the level of risk (e.g. from a Doctor or Social Services)
• Use of Skype
• There being two mediators.

There are pros and cons of each. There are also limits to what is covered by legal aid. Generally, if  the mediation room cannot be made safe enough for both to engage fully in discussion, I would be doubtful about the viability of mediation where there are children. After all; how does the more vulnerable know if the other is being genuine and truthful unless she can hear their tone of voice, observe their body language etc. To say yes to a proposal the parent needs to undertake their own risk assessment.

If the issue is simply finance, the hybrid model is perfect, because everything can be resolved in one day and there is no need for the couple to meet at all. The  more vulnerable can be supported, not just by their Solicitor, but by anyone they choose.

Isn’t Court always better when there has been Domestic Abuse?

Mostly it is, and if the violence is recent, it almost certainly is. However, if agreement  cannot be reached, ultimately the case will be decided by somebody else (the Judge). I have seen cases where the Judge has not accepted all allegations of harm and the Mum has had arrangements for their children forced upon them which they find very uncomfortable. In Mediation, nothing happens which both say yes.

So what you do in the scenario at the start? 

In short, I don’t know, I would need to know more. I would need to talk to both and find out what they want. The decision to mediate is a positive decision made together between the couple and the mediator.

Legal Aid is a factor. If that is the only source of funding, the decision is more difficult.

How far do go to try to set up a safe process? If there is no mediation there is also the risk that the difficulties will escalate (until Court Solutions are definitely needed and available because further violence or threats have happened)

If mediation can happen, will it assist everyone to move on? will it be misused by the aggressive person?

Every case is different.

So the answer, is that I would meet with both and undertake a risk assessment and would decide from there, in discussion with both of the couple.

I have successfully mediated cases where there has been abusive behavior. I have also declined to mediate cases where I have been concerned about safety issues. As a Solicitor, I have also acted for clients where mediation would never be something which could be suitable.