FLJ; Dispute Resolution; Standards and survival: Enhancing the practice model: Part 2

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 2 Henry Brown

 

Family disputes
Mediation:separate confidential meetings
Mediation:standards
Mediation:wider range of family disputes
Standards:mediation

 

This article is based on a presentation to the Family Mediators Association (FMA) annual conference and AGM, September 2014. Part 1 was published in February [2015] Fam Law 202.

 Mediating family issues other than couples

I want to look now for a moment at the wider range of family disputes that can arise within families, rather than just those involving couples’ breakdown. At present, disputes involving family businesses, inheritance issues between family members, disagreements between siblings and a range of other issues between family members all tend to be dealt with by civil-commercial mediators, who use the separate meeting model.

One of the main features of those family disputes is the breakdown of a family relationship, with some similar emotions and dynamics to those that might be experienced in couples’ breakdown. I have had a businessman on one side and his parents on the other side tearfully engaged in a dispute about financial issues within a family company. I have had a High Court dispute between a father and son about the alleged breach of a contractual promise made by one to the other. I have had a brother and sister in crisis over their continuing inability to agree about the administration of investment properties left to them by their parents.

As with couples’ issues, the parties generally need some practical resolution and some opportunities for healing, or at least the beginning of healing. I think that in dealing with such matters commercial mediators have something to learn from the family model about the value of working through difficult discussions in joint meetings and where appropriate working over a longer time frame rather than aiming to settle everything on one day; and family mediators have something to learn from the commercial model about the value of giving people time and space to negotiate at a distance from the other party, with the benefit of time for consideration and advice and guidance from their solicitor alongside them. In both models it must surely be best to have the option to choose whatever tool from your toolkit most effectively meets the needs of each individual situation.

A change of mindset – and practicalities

So, if there are potential advantages in adopting these changes what might the contra-indications be? The main problem, as I have intimated, is that a shift of mediator culture and mindset will be needed to implement this new way of working. For nearly 30 years the message has been ‘We don’t keep separate confidences’ and now it will be ‘Well actually we do sometimes’. I hope that if they believe that it is the right thing to do, the main body of family mediators will be able to make that shift – as scores of family mediators in the UK have already done who have chosen to learn and use this model.

Some mediators may find it uncomfortable to have a role that gives them what may be perceived as additional power – being in possession of information or understandings that are not shared with both parties. The key is to ensure that this is used sensitively and properly in the interests of achieving a mutually satisfactory resolution, often in circumstances where this might not have been achieved without that resource.

Some practical matters will also need to be addressed. Practitioners and professional practice consultants will have to learn how to use and manage these processes effectively and to deal with the issues that can arise when doing so. Some mediators may have difficulty in organising their venues to provide two separate rooms, where separate meetings are to be conducted. And there may be other practicalities that have to be accommodated but I am not aware of any insurmountable obstacles.

Maintaining and improving standards

So now I want to address the issue of standards, which is where I started this article. How would developing the model in the way I have described affect standards? This is a critical question for me, as I have spent a great deal of time over the last 30 years or so trying to ensure that mediation is practised to the highest possible standard. I have been involved in formulating standards and drafting Codes of Practice in the UK and abroad for a number of organisations and incorporating standards into training and practice.

But here I want to consider how we arrive at our standards. Some are fundamental and universal, such as acting impartially and not being compromised by a conflict of interests. Others are based on belief systems that can vary between groups and even individuals. What is OK and what is not may depend on what field of activity you are working in, what philosophy you have, to what extent you were influenced by the model and philosophy your own trainers followed, how your background profession may shape your thinking, how you view the mediator’s role and various other considerations. If you believe that it is bad to involve solicitors or to maintain separate confidences, then a model that does either or especially both of these things would be seen as eroding standards. If, on the other hand, you believe, as I do, that widening the model as I have proposed improves the mediator’s options, enriches practice and creates greater resources for the parties, then you will view this development as significantly improving standards.

An anomaly in the FMC Code

In this context, the FMA’s Code of Practice, which adopts the Family Mediation Council’s Code, does not contain any prohibition against agreeing to have separate confidential meetings, but there is a strange provision that would certainly inhibit the flexibility of process that I have outlined. It is in paragraph 5.5.2, which reads as follows:

‘Mediators must not discuss the mediation or correspond with any participant’s legal advisor without the express consent of each participant. Nothing must be said or written to the legal advisor of one party regarding the content of the discussions in mediation which is not also said or written to the legal advisor(s) of the other.’

On any version and any model, it is very odd to have a provision that compels a mediator who discusses some aspect of the matter with one party’s lawyer to have to contact the other lawyer and have the same conversation. Of course, this would preclude having separate confidential meetings with solicitors present and would make the change that I am proposing impracticable. In fact, it makes no sense even on the basis of the current model: what standard is being upheld by providing that a mediator cannot have independent discussions with each solicitor? I mentioned this to a group of experienced family mediators who were on one of my workshops and asked them what they thought of this provision. They summed up their response in one word: ‘Bonkers’.

I raised this issue with the Family Mediation Council in June explaining my concern about paragraph 5.5.2. I indicated that this provision was unnecessary and inappropriate and certainly did not reflect any ethical or practical need. I asked them to delete this sentence from the Code so that mediators could engage with the separate lawyers. The reply that I got was that the FMC had a full agenda ‘led by the demands of the MOJ to address issues relating to standards’ and that it could not look at this issue within the following few months – but it would do so ‘in due course’. It does seem somewhat ironic that the FMC was so busy dealing with standards that it could not review a sentence in their Code that stood in the way of significantly improving standards! Hopefully, they will address this reasonably soon. Of course, for those mediators who might want to continue using the current model without making the changes that I have proposed, that must be their prerogative; but it cannot be right for the family mediation profession, through its Code of Practice to preclude those who wish to offer parties separate meetings and to liaise appropriately with their lawyers from doing so.

Conclusion

I would like to end by looking at the recent history of the Law Society’s Code of Practice for Family Mediators. In its 1999 Code, section 7.5 read as follows:

‘7.5  The mediator must discuss arrangements about confidentiality with the parties before holding separate meetings or caucuses.  It may be agreed that the mediator will either:

7.5.1 report back to the parties as to the substance of  the separate meetings; or

7.5.2 maintain separate confidences: provided that if separate confidences are to be maintained, they must not include any material fact which would be open if discussed in a  joint meeting.’

The Law Society Code also provided in para 4.12 as follows:

‘4.12 Mediation meetings are commonly conducted without lawyers present.  However, solicitors or counsel acting for the individual parties may be invited to participate in the mediation process, and in any communications, in such manner as the mediator may consider useful and appropriate, and as the parties may agree.’

These provisions were drafted by a group of experienced mediators and allowed family mediators the discretion and freedom to work with or without lawyers present, to communicate with them appropriately to the needs of the situation and to have separate meetings where the couple agreed to this. However, in December 2012 the Law Society announced the following:

‘To help mediation practitioners, the Law Society has decided to adopt the Family Mediation Council’s Code of Practice in full. The Law Society has had its own Code of Practice for some time, but having more than one Code was potentially confusing for practitioners.’

So to avoid confusion, the Law Society (which by then incidentally had done away with its ADR committee of specialist mediators) dropped its provision that ethically approved the mediator and the parties agreeing on how to deal with their solicitors and adopted the FMC’s Code which severely restricted the mediator’s and the parties’ discretion in this regard. My question would be: was that an improvement of mediation standards or a diminution?

I hope that the ideas that I have outlined, while they are not new, but with the perspective of actual experience in practice, may provide some food for thought as to how much more we can offer as family mediators if we are willing to embrace change. I believe that in making these changes we can enhance our standards and help family mediation not only to survive, but thrive.