FAMILY MEDIATION
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Transcript of FAMILY MEDIATION
FAMILYMEDIATION
June Venters
WHAT IS MEDIATION?
• “Alternative Dispute Resolution”
AIM OF MEDIATION?
You’re notalright
I’m notalright
You’re alright
I’m alright
I’m alright
You’re notalright
I’m notalright
You’re alright
QUALIFICATIONS & APPOINTMENT OF MEDIATORS
• Qualifications and appointment of mediators [See Document 1 - Training]
WHAT ARE THE PRINCIPLES OF MEDIATION?
• Voluntary participation
–NB Legal Services Commission’s referral requirement before issuing Section 8 Children Act applications
WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED)
• Impartiality of the mediator
–NB discussions regarding referrals within the same solicitors practice
– Respect for individuals in mediation
WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED)
• Confidentiality
• Decision-making rests with the Participants
MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION
• Informed discussions and decision-making [disclosure]
• Facilitation of communication, without advice
• Confidentiality and legal privilege
NB exception for confidentiality
MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION (CONTINUED)
NB exceptions to legal privilege (waiver of legal privilege by both parties)
– Legal privilege attaches to the parties not the mediator. Accordingly if parties agree to waive privilege and the mediator declines it is for the Court to decide whether the mediator should be called
NB Rothwell v Rothwell [2008] EWCA Civ1600 [See Document 2]
VOLUNTARY PARTICIPATION
MEDIATION COURSES
[See Document 3 - Example of a Training
Provider’s Course details]
IMPARTIALITY OF THE MEDIATOR
RESPECT FOR INDIVIDUALS IN MEDIATION
IRESPECT
WE RESPECT
INFORMED DISCUSSIONS AND DECISION/MAKING [DISCLOSURE]
FOR DISCLOSURE
FACILITATION OF COMMUNICATIONS, WITHOUT ADVICE
CONFIDENTIALITY AND LEGAL PRIVILEGE
HOW DOES MEDIATION WORK?
WHO CONTROLS WHAT:
• Mediator in control of the process
• Participants in control of the agenda
HOW DOES MEDIATION WORK? (CONTINUED)
• 5 STAGES
–Establishing the arena–Clarifying the Issues–Exploring the Issues–Developing Options–Securing Agreement
HOW DOES MEDIATION WORK? (CONTINUED)
• MEDIATION DOCUMENTATION
–Willingness Test–Intake/Information Meeting–Agreement to Mediate–Session Sheet–Memorandum of Understanding–Open Financial Statement
HOW DOES MEDIATION WORK? (CONTINUED)
• Legal standing
–NB Rothwell v Rothwell [2008]
– Further guidance required
HOW DOES MEDIATION WORK? (CONTINUED)
• Differences in roles and responsibility when comparing legal advisers and family mediators
Legal Advisers
• Legal Advisers have a duty towards their own client
Family Mediators
• Family Mediators have a responsibility to help both participants equally and in impartially
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers often start by taking the history from their clients
Family Mediators
• Mediators help participants to define issues and agree an agenda without taking a history
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers advise clients on their legal position and framework of the law and procedure
Family Mediators
• Mediators focus on participants concerns first and foremost:– Legal context is
secondary
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers collect and exchange financial information in a formal discovery process
Family Mediators
• Mediators share and clarify financial information from both parties with both parties together
HOW DOES MEDIATION WORK? (CONTINUED)
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers tend to use legal terminology
Family Mediators
• Mediators tend to use non-legal language
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers may be obliged to address clients grievances about past incidents or behaviour
Family Mediators
• Mediators focus on the present and future as far as possible
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers give clients emotional support and may Counsel them in an informal way
Family Mediators
• Mediators acknowledge and mutualise both parties’ feelings, can manage their anger and help them move forward
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers draw from clients’ view of the children’s needs
Family Mediators
• Mediators seek both parents’ views and concerns about their children; may involve children
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers advise:– may recommend a
particular course of action
Family Mediators
• Mediators set out options without advising on the best option
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers in round-table meetings with their clients, legal advisers tend to take the lead
Family Mediators
• Mediators encourage dialogue between participants, intervening when necessary
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers write letters on their clients’ behalf; may take over management of the case
Family Mediators
• Mediators help participants to keep control of their affairs as far as possible
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers draft applications to the Court
Family Mediators
• Mediators do not draft Court applications
HOW DOES MEDIATION WORK? (CONTINUED)
Legal Advisers
• Legal Advisers are unlikely to cause – work “unless they are active as collaborative lawyers”
Family Mediators
• Mediators may co-mediate; draw from the knowledge and skills of other disciplines
WHAT ARE THE TASKS AND SKILLS IN THE OPENING STAGES OF MEDIATION?
• Creating a forum and positive environment
• Explaining, informing
• Questioning
• Listening
• Acknowledging
• Clarifying
• Managing conflict without suppressing it
WHAT ARE THE TASKS AND SKILLS IN THE OPENING STAGES OF MEDIATION? (CONTINUED)
• Re-framing and mutualising
• Prioritising
• Balancing
• Building trusts
• Management of case
• Summarising
COSTS
• Legal Aid
– Providing disposable income does not exceed £733.00 per month and capital does not exceed £8,000 Legal Aid will be available
COSTS (CONTINUED)
• Legal Aid
• NB If someone is in receipt of income support, income based job seekers allowance, income based employment and support allowance or guarantee credit they will be passported
[See Document 5 – Community Legal Service Keycard for calculation of Public Funding]
COSTS (CONTINUED)
• Privately funded
– Where Legal Aid is not available fees will be on a privately funded basis according to income
TIMEFRAME
• This depends on a number of factors:
– Children only Mediations• These tend to last an average of 3-5 sessions
TIMEFRAME (CONTINUED)
• This depends on a number of factors:
– All issues in Mediation• These involve children and finances and tend to
last between 5-7 sessions
– Finance Mediations• These tend to last 3-5 sessions
TIMEFRAME (CONTINUED)
• There is no hard and fast rule and much will depend on the individual requirements and complexities of the issues being discussed
• Each individual session will last approximately 1.5 hours
CHILD MEDIATION[See Document 6]
• In Mediations involving children parents often wish to involve their children in the process
• Additional qualifications are required on the part of the mediator
• Strict procedures need to be observed
• Confidentiality extends to children
• Child protection policy
CHILD MEDIATION (CONTINUED)
MEDIATION AND DOMESTIC VIOLENCE
[See Document 7]• Can they interrelate?
• It is possible for Mediation and Domestic Violence to inter-relate subject to safeguard [screening]
• Timing may vary
MEDIATION AND DOMESTIC VIOLENCE (CONTINUED)
• Nature of co-mediation may vary [co-mediation; shuttle, Caucus]
• Signposting – anger management
• Domestic violence remedies whether through the criminal or civil Courts are a short term “fix” – ongoing issues such as finance and children in relationship breakdowns still need to be resolved
MEDIATIONNational Family Mediation Helpline
NATIONAL FAMILY MEDIATION HELPLINE [See Document 8 & website
http://www.familymediationhelpline.co.uk]
THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)
• Set up on 3.4.09 in conjunction with the Civil Mediation Council HMCS set up The National Mediation Helpline
• Provides civil court users in England and Wales with information and advice on mediation
THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)
• If requested, the Helpline can put callers in contact with an accredited mediation provider who can provide low cost mediations.
• The Helpline can be accessed by phoning 0845 603 0809 (local rate) between 8.30am and 6.00pm.
THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)
• The Helpline advisers provide callers with information on the potential benefits of mediation and they will talk parties through the mediation process.
• The Helpline does not provide advice on individual cases or mediators.
THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)
• If the call is a request for a mediator then the Helpline adviser will ask a series of questions and pass the enquiry to a mediation provider accredited by the Civil Mediation Council.
THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED)
• The mediation provider will then contact the parties to discuss the suitability of the dispute for mediation. If all parties agree to proceed a mediator will be appointed and a date and time of mediation will be set.
WHAT THE FAMILY COURTS EXPECT FROM PARENTS[PILOT SCHEME]
[See Document 9]
PILOT COURT MEDIATION SCHEME
• Introduced Milton Keynes 2004
• Mediators work independently
• At 1st referral & Directions Hearing likely suitable cases are identified and put on a mediation list
• On a Court Day Mediators meet with the Judge and Cafcass to confirm suitability
PILOT COURT MEDIATION SCHEME (CONTINUED)
• Assess and mediate one or 2 cases in half a day
• Can adjourn for further mediation session
• 75%-80% Success rate
• Funding [LSC]
A Court scheme is still in its infancy stage
COMPLAINTS PROCEDURE[See Document 10]
CROSS BORDER FAMILY MEDIATION
What is cross border mediation ?
• What is Cross Border Mediation?
Cross Border Mediation is a specialized form of family mediation that provides services to families dealing with international parental kidnapping issues and international custody access issues.
The E. U. Directive2008/52/EC
This Directive of the European Parliament and of the Council refers to ‘certain aspects of mediation’.
• The EU would like mediation to be promoted by member states
• The directive seems to arise from recognition that mediation needs some structural support if it is to be effective, particularly in those difficult disputes between people in two different member states.
• It applies to ‘mediation in cross border disputes’ (Preamble, para 8).
• It applies to any mediation, whether freely chosen or ordered by the court (or even judicial mediation) (Article 2, 1).
The E. U. Directive2008/52/EC
• It is careful not to create any new rights
• ‘it should not apply to rights and obligations on which the parties are not free to decide themselves under the relevant applicable law.
• Such rights and obligations are particularly frequent in family law and employment law’ (Preamble, Para, 10).
What should we be considering in Cross Border Disputes
• Culture
• Language
• Law
• Jurisdiction
Practical Issues
• Venue
~ Consider Telephone conferencing
~ Consider Video conferencing
Practical Issues
• Attendees
~ ? Interpreter
~ ? Lawyer
Practical Issues
• Nationality of Mediator
~ Careful consideration should be provided to ensure that the Mediator is and is seen
to be neutral
Enforceability of Agreements made in Cross Border Family Mediations
• The EU Directive is clear that:
• Mediation should not be regarded as a poorer alternative to judicial proceedings’. It goes on, ‘in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties’ (Preamble, Para 19). In other words, if mediation is going to be effective, its outcomes have to be seen as equally worthy of state support.
So this is about enforcement.
Enforceability of Agreements made in Cross Border Family Mediations
The Article itself states:• ‘Member States shall ensure that it is possible
for the parties, or for one of them with
• the explicit consent of the others, to request that the content of a written agreement
• resulting from mediation be made enforceable’ (Article 6, 1).
CONFIDENTIALITY
• The basic principle of confidentiality is preserved by the EU Directive
CONFIDENTIALITY
• Article 7 calls on Member States to:
‘ensure that, unless the parties agree otherwise, neither mediators nor those involved in the administration of the mediation process shall be compelled to give evidence in civil and commercial proceedings or arbitration regarding information
arising out of or in connection with a mediation process’
CONFIDENTIALITY• Scotland remains the only country in the EU to have
put such legislative protection in place (Slovenia may now have done so too).
• The Civil Evidence (Family Mediation) (Scotland) Act 1995 provides that ‘no information as to what occurred during family mediation to which this Act applies shall be admissible as evidence in any civil proceedings’ (1995 Act, S.1 (1)). This Act contains the usual exceptions for child protection, information relating to the commission of a crime and the existence of a contract.
CONFIDENTIALITY
• If everyone involved apart from the mediator agrees, the evidence is admissible (S.2 (1) c).
IMPACT OF E U DIRECTIVE
• the EU has determined that:
Mediation should not be a ‘poorer alternative’ to the court but sit alongside the justice system as a respected and respectable way for people to resolve disputes.
THE FUTURE OF FAMILY MEDIATION GENERALLY
THE FUTURE OF FAMILY MEDIATION GENERALLY
• The UK Government is clear that Mediation is to be encouraged and this is evidenced by the approach to Public Funding of Family cases and the Courts and the National Family Helpline
• The EU Directive is clear that it is to be supported cross border