FLJ; Dispute Resolution; Standards and survival: enhancing the practice model: Part 1

These articles were published by Family Law (a publishing imprint of Jordan
Publishing Ltd) in the February and March 2015 issues of the journal Family
Law, at [2015] Fam Law 202 and 317, respectively.

 

Henry Brown, Mediator

 

Standards and survival\: enhancing the practice model\: Part 1 Henry Brown

 

Family Mediators Association (FMA)
FMA (Family Mediators Association)
Mediation:practice model
Mediation:shuttle
Shuttle mediation

 

This article is based on a presentation to the Family Mediators Association (FMA) annual conference and AGM, September 2014

I am very pleased to be giving this second John Cornwell Lecture today because of the very high regard I had for John, who had a significant influence on the development of family law practice in the UK. John was of course a founder of the SFLA – Resolution – and also one of the co-founders of the FMA. He combined a strong sense of tradition with a healthy readiness to challenge existing practice where it was appropriate to do so. I would like to think that he would support the ideas I am going to talk about today.

The development of our present model and standards

The theme of today’s conference is ‘standards and survival’ and I want to explore how ‘enhancing the practice model’, the title of my talk, would impact on both these aspects. It may be worth reminding ourselves how our standards developed. For this we need to go back nearly 30 years, to 1985 when six of us – Lisa Parkinson, Felicity White, John Cornwell, Jack Bleiman, Diana Parker and I – set up a pilot scheme, Solicitors in Mediation, that ran for 3 years and morphed into the Family Mediators Association.

At that stage there was no mediation in the UK as we now know it. Commercial mediation was unknown and in the family field, no-one was mediating property or financial issues or all-issues on divorce. We were the first to tackle these issues in the UK, so we created our own rules and standards, based on a composite of different sources, including Lisa’s professional and child conciliation experience, Jack’s and my experience of training in all-issues mediation in New York with John Haynes, and the input of all of us as to the particular needs of the family law system in England and Wales. Into this mix we added our various ideas as to what we thought would work and what wouldn’t.

We entrenched those new ideas and processes into strict rules and standards, which were built into all the training that followed. I think that that was right for the time. We were dealing with something very new and we did not want people to go off and do their own thing outside the parameters of what we believed in, and which we were struggling to get accepted and adopted. We needed strict boundaries, especially while developing a new process. That process worked as well as we might possibly have hoped. Mediation is now part of the mainstream of family practice and we know from research and anecdotal evidence that parties reach agreement in almost 70% of cases mediated. We also know that mediated agreements survive better than litigated outcomes and lead to better post-divorce relationships. That is a pretty decent record.

But … we can now do better

So why am I about to introduce a ‘but’? The ‘but’ is: but I believe that we can do even better if we take the clear and unequivocal step of enhancing our practice model by extending our practice in the ways I am going to suggest in this talk. I want to emphasise that these changes are not intended to replace the way family mediators currently work, but would rather stand alongside existing practice and would, I believe, make family mediation more acceptable both to the public and to the legal profession as well as being more effective. I have a pretty good idea as to the concerns family mediators might have about the processes I now propose because I expressed them myself when we started in the eighties. But over a period of about a quarter of a century I became increasingly clear that some of our concerns were not justified and that others could be met by incorporating these processes into our practice in a thoughtful and carefully managed way.

I was lucky enough to be involved not only in setting up family mediation practice in the UK, but also civil-commercial mediation practice. When the commercial mediation organisation CEDR (the Centre for Effective Dispute Resolution) was established in 1990 I was asked to join its initial training faculty.  I have trained and mediated in the family field, and predominantly also in the civil-commercial field, and what I have been able to do is to explore in actual practice ways in which elements of other models could be integrated into our family practice and vice versa. I have seen the future and it works! What I am discussing today arises from practice, not from theory.

Practice that could now be developed

I am reminded of the story, perhaps apocryphal, of the Australian judge, who observed a demonstration of mediation and who commented: ‘Well, I can see that it works in practice but does it work in theory?’ So now let me run through some of the things that I think could be developed:

(1) We need to integrate parties’ lawyers into the process wherever appropriate.

I am mindful that in our original model we decided to keep the parties’ lawyers out of the process, as John Haynes and others did. We felt that this would support empowering couples and we wanted them to focus on their interests and those of the family, rather than be side-tracked by a focus on legal rights and argument. However, in my commercial practice, and also in my family practice, I involved parties’ solicitors directly in the mediation and contrary to original expectations, my experience of doing so was consistently positive. There are practical and funding issues involved here, but my fundamental proposition No. 1 is that lawyers can and should have a greater role in the family mediation process wherever appropriate and practicable.

(2) My second proposition is that we need the option of separate confidential meetings with each party as a part of our mainstream process.

Here again, when we established the original model, we adopted a process in which the mediator didn’t keep secrets from either party. That has to some extent been eroded by the development of separate confidential meetings to screen for abuse; but otherwise the principle of not keeping secrets has been maintained in practice. I know that some family mediators occasionally use separate confidential meetings, but this isn’t part of mainstream practice. The FMA’s website, in referring to what it calls ‘caucus mediation’ says (and I quote): ‘This is rarely used in family mediation.’

Incidentally, the FMA website contains a fundamental misunderstanding about separate meetings. It refers to ‘shuttle mediation’ and says that this involves ‘No face to face communication between you and your partner/former partner. You each remain in separate rooms and the mediator “shuttles” between you.’  While it is correct that in the commercial model parties do commonly remain separate after an initial joint meeting, that isn’t the way in which shuttle mediation works in the family context, with its rich tradition of joint meetings. Whenever I have used shuttle mediation with couples, I have done so alongside joint meetings over time. These two ways of working complement one another rather than being mutually exclusive. I have found this procedure so valuable that if I were to continue with a family mediation practice – I have now actually retired from mediating – I could not contemplate limiting myself only to joint meetings and not being able to have these separate meetings.

(3) Proposition No 3: we need to be flexible about the length of sessions.

I remember a discussion with Lisa and Felicity, and perhaps one or two of the others, nearly 30 years ago, when we considered how long a mediation session should be. One of us suggested: ‘What about an hour, or 50 minutes, based on the length of a therapy session?’ ‘No, too short’ was the consensus. ‘Then how about 2 hours?’ ‘No, that feels too long for a couple in intensive discussion.’ ‘So then, how about 1½ hours?’ ‘Yes, that feels right.’ So 1½ hours became the norm.

30 years later, I think we got it about right with the 1½ hour session, which I would still propose today as a default option. But over the years I’ve had sessions of varying length appropriate to the needs of the situation, and this has really worked fine. I’ve certainly done half-day sessions and even full day meetings where I judged that the parties could cope with it and we needed that kind of timing. We need to build in flexibility of timing so that we don’t feel constrained by an arbitrary time frame.

(4) No 4: We need to encourage greater creativity and flexibility within the bounds of workability and ethical propriety.

We need to be careful that our practice model, rules and standards do not have the effect of stifling the mediator’s ability to work in a creative, intuitive way. Of course mediators need to observe a Code of Practice that protects the parties and the process from malpractice. But if it imposes a regime that inhibits creativity, spontaneity and flexibility then we’re getting something wrong. I would suggest two fundamental criteria for flexibility in practice: workability and ethics. If I’m thinking of doing something unusual, will it work and is it ethical? If it meets these two criteria, then it should be well on the way to acceptability. Let me give a couple of examples.

A professional couple who used the same accountant asked me to speak to him to consider practical and tax-effective ways of separating their financial arrangements. I liaised directly with him on the phone from time to time as the mediation progressed, discussing his thoughts and ideas with the couple and their lawyers by phone or e-mail as we went along. I was able to help steer a constructive middle course, and he became a valuable resource in getting the couple to a financial deal.

In another case, one party was the discretionary beneficiary of a family trust, which the couple agreed could play a significant role in any settlement terms. The problem was that the trustees were understandably cautious about giving any commitment. So I invited one of the trustees to a session, he met the beneficiary and her lawyer with me privately to clarify the proposals and the rationale for them, and then he joined everyone in a joint meeting with the parties and their lawyers to widen the discussion. As a result he got all his questions answered and he promised to discuss the position with his co-trustees and get back to us. Within a few days the trustees agreed to make certain contributions that enabled the parties to reach a settlement.

So now let me give some indications of how this enhanced model might work in practice. In doing so, I want to reiterate that it’s a mistaken belief that mediators are faced with an ‘either/or’ decision about the use of an alternative model of practice. The common belief is that either you adopt the model of joint meetings with no separate confidences or you have a process in which the mediator keeps secrets – there is no middle way. In fact there is indeed a third way, which I’ve used in practice, and which adopts the standard family model of joint meetings with no separate confidences as long as that works, with an option to change to the confidential caucusing process if and when that becomes necessary and appropriate – and with the additional option of mixing and matching with joint meetings as you go along.

Initiating the process and integrating the lawyers

At the start of mediation all the usual ways of engaging parties would apply as they do now, whether through direct enquiry, solicitor referral or a preliminary information meeting. In addition, one very useful way in is an initial meeting with solicitors who are considering appointing you as the mediator. In this case, you can suggest having a preliminary meeting with both solicitors, subject to their clients agreeing. At that preliminary meeting you can discuss the process and outline the way you want to proceed, and the role that the solicitors might have. You can establish whether there have been any proceedings or negotiations and generally whether or not there are any particular legal or other issues that need special attention. In the preliminary meetings I’ve had with the parties’ lawyers I would ordinarily tell them that I proposed to see their clients in joint session without lawyers for a number of meetings, following the standard family model. I’d arrange to liaise with the respective solicitors as necessary as the mediation progressed, always with the clients’ consent. The lawyers would inevitably have different perspectives, reflecting their clients’ different viewpoints, but I invariably found both solicitors constructive and supportive when engaged in the process in this way. It was an hour or so very well spent.

As far as practicable, I would then have a series of joint meetings with the couple, without solicitors present, as in the standard model. Where appropriate I would encourage them to take legal advice between sessions, as one would normally do. Where Forms E were needed, I would still work directly with the parties in handing out the forms and discussing these with them, so that they would have a clear understanding of what was needed and involved; but where solicitors were acting I would ordinarily suggest that the couple liaise directly with their solicitors before finalising the forms and returning them to me. In one or two cases, Forms E had already been exchanged at the time when I was brought into the picture. In all cases I would still go through the completed forms with the couple and write up the information. Where matters are resolved in the joint meetings, then the usual procedure can be followed – preparing a privileged Memorandum of Understanding and an open financial summary for the solicitors to take forward in the ordinary course.

Separate confidential meetings

However, as we know, a number of matters do not settle in the joint meeting process. As something approaching 70% of mediations settle, that means that something over 30% don’t settle, that’s maybe one in three. In these kinds of cases I would be able to offer the couple the resource of meeting with me separately and confidentially to explore options, possibilities and concerns privately. This is really helpful as an impasse strategy or it may be built into the process from an earlier stage, for example where a couple simply can’t negotiate with one another effectively in joint sessions, where perhaps one feels intimidated or unable to stand up to the other, or where there are difficult or complex financial issues. There are many reasons why people may prefer not to negotiate directly with one another, making on-the-spot decisions, especially without the support of their solicitor alongside them. I would explain to them that this involves setting up a session for at least a few hours, perhaps a half-day or maybe even a whole day, where they will have separate rooms, and that I will meet with each in turn, discussing options and proposals confidentially with each. I indicate that the procedure is flexible and that I may also have some joint meetings if this seems useful. Usually they will bring their solicitors along with them, but this is not essential.

This shuttle process in family mediation is based on the way it is used in other forms of mediation including civil-commercial, but I have adapted it to the requirements of family practice. For example, it is a term of the revised mediation agreement that I have devised that no confidences can be maintained about anything that would be ‘open’ in joint meetings, so there cannot be any secrets about financial information. Also, the usual exclusions about the mediator not maintaining confidentiality where there is a perceived risk of harm to children or others will similarly apply to the separate meetings. I explain that subject to these exceptions I will maintain confidentiality about what they discuss with me, but that I may from time to time suggest that they release me from confidentiality to enable me to take proposals or comments forward if I think that would be helpful. Having solicitors present usually gives parties the confidence to make shifts, but I have also used this process without lawyers present; and in all cases, I have found it to be incredibly useful and can break through where joint meetings simply can’t do so.

Let me briefly outline some of the things that might arise in separate meetings. First, what does not arise, as some people seem to anticipate, is a party giving you secret information like: ‘Don’t say anything but I have got a bank account in Switzerland that she doesn’t know about.’ As I have mentioned, it is a clear term of our agreement that anything that would be open in joint meetings, particularly any kind of financial information, cannot be confidential in the separate meeting.

More usually, parties find it easier to talk and express themselves in separate meetings. Sometimes they might want to float an idea to get my view as to how I think it might be received, or they may indicate what they want to achieve and I can give some feedback. Or they may have alternative proposals in mind and are unsure which would be better to pursue. As mediator, I can act as a confidential sounding board for whoever may need it. Or they may simply not feel comfortable about direct face-to-face, on-the-spot negotiation which joint sessions demand. They may be much more comfortable having time to consider proposals and counter-proposals as they develop, sitting quietly with their lawyer, discussing these and formulating their responses for me to carry. This is quite a different negotiating environment from having to react and respond spontaneously in a joint session.

I see the mediator’s role as helping the couple to craft a solution that will meet both their needs. As I move from room to room, I can often see the shape of the settlement developing and I can give it the breathing space to find its best form. Sometimes people do indeed want to say something about the other that they feel they can’t easily say in a joint meeting. It may be an expression of anger or frustration, or there may be something that they need to get off their chest. One can deal with that appropriately, either in discussion with the person raising the issue or perhaps in a carefully framed message to the other party.

Separate meetings tend primarily to be used to deal with issues around finance and property rather than about children, which are generally better dealt with in joint meetings where possible. However, there are times when children’s issues can also be addressed in separate meetings, particularly where the situation is conflictual and volatile. Sometimes this might be as a prelude to getting the couple to bring this back into a joint meeting. After a few shuttles, I might well bring the parties back into joint meeting, either to discuss some particular aspect, or perhaps generally for the rest of the session. Or I might have a word with their solicitors, separately or together. Meeting with the solicitors without their clients present – whether at a preliminary session when first instructed or during the substantive mediation can be very useful. By and large, the solicitors can speak a bit more freely and can make constructive observations, always with their client’s best interests in mind but perhaps somewhat more geared to finding a joint solution.

Where meetings are taking place fortnightly or whatever might be appropriate for the couple, and whether or not solicitors have participated in the sessions, it can sometimes be useful to communicate with either party or with their solicitor on the phone or by email between sessions, or I might liaise with some third party, for example, an accountant or a trustee as I have mentioned. And I’ve generally done this on the basis of separate confidentiality – that is to say, that I will treat these communications between sessions on the same basis as if they were separate meetings, and with the same confidentiality rules applying.

The need for a culture shift

The ability to meet parties separately, to hold confidences, to involve their solicitors in the process, to speak to third parties, to adapt the process flexibly to the needs of the situation – these would sound pretty normal to a commercial or neighbourhood mediator, but they do fall outside the parameters of family practice in the UK and it will need a culture shift to accommodate them – one that I believe it is now necessary for the profession to make. I know that the changes to the public funding of family disputes have brought some unforeseen and damaging results to family mediation. I am also aware that the Ministry of Justice has taken steps to ameliorate the position, to help couples get into mediation. No doubt there are further ways that the MoJ can and will support mediation. I believe that what I’m proposing will complement practice and sits very well alongside MoJ support.

I do not believe that these changes would put anyone off mediating. On the contrary they would be likely to attract more people into the process. I believe that they would also encourage solicitors to refer their clients into mediation, knowing that they would have a role in the negotiations. It would also be a viable alternative to collaborative practice in situations where parties may want to be directly involved in negotiations, but would like to have their solicitors alongside them – and indeed it also works well as an impasse strategy in stuck situations in collaborative practice, where the present model of excluding solicitors does not.

Once this model comes out of the shadows and enters the mainstream of family mediation practice, it would not be unreasonable to consider whether public funding for mediation might need to be adapted to provide for direct representation in mediation in appropriate cases. Meanwhile, many unrepresented parties are likely to feel more comfortable with this procedure than with exclusively having to meet their partners and negotiate face-to-face in joint session.

High conflict personalities

There are a couple of areas where in my view separate meetings are particularly necessary. The first is when dealing with high conflict personalities. By ‘high conflict’ I’m not referring just to high emotional content, but to particular personality traits where either or both parties have stuck and entrenched “world views” – logical from their perspective but often with some skewed or distorted element that results in an inability to reach agreement. When it looks as though an agreement may be in reach, it slips away like a mirage. I am wary of statistics but it does seem that something like 5%–10% of couples may fall into the high conflict category, which is linked to disorganised attachment, the most extreme form of insecure attachment as mentioned by Penelope Leach in her talk.

Professor Peter Fonagy, Director of the Anna Freud Centre in London, is very clear about strategies that need to be used in working with these kinds of personalities. He says that if as a professional you use the same strategies with them as you ordinarily do, you are bound to come unstuck. There are some very specific differences of approach when dealing with these couples. In my experience, one of these, among others, is to have separate meetings with each of the couple, and where appropriate with their solicitors involved. In my view, these are absolutely essential.

Problems with reflective function

The second situation where separate meetings are particularly relevant is when dealing with people, often vulnerable, who for one reason or another have difficulty in comprehending the views of others and negotiating flexibly, for example, being on the autism spectrum, perhaps with Asperger’s Syndrome, or having an obsessive-compulsive disorder, or having some of these traits. It is not reasonable to expect people in this situation to manage the demands of face-to-face negotiations, nor to condemn them to having to go to court to get a resolution because our systems are not flexible enough to meet their need for patient, confidential help and understanding in addressing the personal and pragmatic issues facing them.

Mediating with a flexible mindset

I have suggested encouraging flexibility and I would like to give another example of applying this in practice. A couple could not agree about the maintenance that the husband should pay to his wife. She had been a substantial earner but said that she could not cope with the stresses of her demanding work, and she had moved to a low-powered low-paid job. The husband contended that dropping her income was her choice and it was not right that he should have to subsidise her decision to take life easy.

Each had received conflicting advice from their respective lawyers and their differences threatened to scupper the mediation. In that case, I suggested that they take joint steps to obtain an opinion from counsel on this point, and bring it back to a mediation session. I helped them formulate their respective views into joint instructions, with each adding a separate independent section containing their contentions. Their solicitors submitted this to counsel, and they brought the opinion back to the next session. In the event, counsel’s opinion broadly supported the wife’s view, much to the annoyance of the husband who threatened not to pay his share of counsel’s fee. However, the opinion was able to form the basis of further discussion and negotiation and a compromise was arrived at which substantially but not totally adopted counsel’s views.

The Australian mediator John Wade once told us on a training course here in London that if he was mediating with a couple and one said that the other’s mother made contact arrangements very difficult, his response was: ‘Oh does she? What’s her phone number? I’ll give her a ring.’ I remember at the time being somewhat taken aback by that concept – and I have never gone quite as far as that; but it does open up the question as to whether we can do rather more as family mediators than we may have got used to doing.

Part 2 will be published in the March issue of Family Law.