Problem solving: family reporting, mediation and the courts

A number of family law practitioners have been asking me about the future of mediation, in particular, family mediation. If you are contemplating undertaking training, it is an important question, and worthy of a measured answer.

I came to family mediation by an unconvential route. Eleven years ago, training as a commercial mediator, I had little expectation then that family law would reveal such fertile acres for the family facilitator – it was inconceivable that mediation would be more than a sticking plaster for fractured families. Part III of the Family Law Act 1996 was still-born and quickly to be buried three years later. But Woolf’s Civil Procedure Rules in 1999 and later the current Family Procedure Rules were to change all that.

I envisage that within the next few years there will be a massive revolution in the way in which private law family disputes are managed.

Most district judges (rightly or not) no longer support the traditional ‘adversarial approach’ to resolving residence, contact and specific issue matters. Advocates schooled in examination, cross examination and re examination are dinosaurs in the district judge’s lounge. Less time is spent looking at what is ‘wrong’ and more time examining the ways to fix it.

Private family law is all to do with ‘problem solving’. Rather than seeing themselves simply as ‘reporters’, CAFCASS are placing considerable focus on both facilitation meetings (where the CAFCASS officer mediates the dispute) and family group conferencing (where the parties themselves forge an outcome).

The way forward will probably be a hybrid of both approaches. Many cases of family conflict do not lend themselves to round table discussions, and where there has been a history of domestic conflict or violence, family meetings are fraught with danger. But I come across few private law family cases where some element of facilitation would not have improved family functioning; and I encounter a surprising volume of instances where it can actually problem solve the main issues.

So, the courts want to know less about what is wrong – or indeed how to fix it; but expect the family court support practitioners to do the fixing. No, we do not need psychological profiling of parents – we need the application of simple remedial skills of the mediator to bring about changes in family functioning.

Where does that leave us as a profession? Well, certainly not litigating conflict in private law family disputes. First, the judge’s don’t want it; second, the government won’t pay for it; and third, the changes in expectation of both process and professional intervention will not support it. Yes, we are to be mediators, whether we like it or not. I for one, like it and see it as a treasured skill leading to a rich seam of professional satisfaction.


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