Family mediation – challenges and opportunities in a pandemic

The past year has caused each of us to reflect on what is most important in our lives. Family. Friends. Freedom. It has also made us look forward, to life post-pandemic; and this, along with the pressures of lockdown, home-schooling, and everything else 2020 had to chuck at us, has understandably resulted in lots of couples deciding to go their separate ways.

We are living in uncertain times, which make separation and divorce an even more intimidating process. Ultimately though, most couples want the process to be amicable, dignified and focused on what is best for any children of the family. This is the point at which I raise the flag for mediation.

This week is Family Mediation Week – an annual opportunity for mediators to shout about a process that empowers and enables families to find their own solutions in a constructive way that is aimed at preserving co-parenting relationships.

In “normal” times, mediation would involve face-to-face meetings:

– First, initial individual sessions to ensure mediation is the right process for everybody, to understand the issues and what couples need from the mediator to manage the discussions; and

– Then, joint sessions with the mediator, who helps the parties to:-

o Set their own agenda;
o Listen to each other’s concerns; and
o Start thinking creatively about ways to sort things out.

The focus is on collaborative problem-solving. Couples are more invested in solutions that they have reached themselves, so they are more likely to work in the long term.

Mediation isn’t just for divorcing couples; it can be an option for discussions about prenuptial agreements, unmarried couples, co-parenting or alternative family arrangements. It can be used right at the beginning for couples who are thinking about separating, but haven’t made a final decision. Mediation sets a constructive tone, and provides a space to talk, for example, about how to tell the children their parents are separating.

Most families are in survival mode right now, but mediation can offer couples who are struggling the time to think and talk about options. It is a bespoke process – the parties control the pace and sessions can be scheduled around work and childcare commitments.

The pandemic has inevitably forced mediation online, which brings its own challenges and opportunities. We often talk about “remote mediation”, but that isn’t really the right term, particularly with some couples mediating while both still living and working under the same roof.

It is obviously crucial that the practicalities are discussed right at the outset – to ensure everyone feels safe and comfortable with the process and the technology. The mediator’s role is to ensure balanced discussions in a private space. Each party will be asked to ensure that they cannot be overheard during the sessions, particularly by any children.

Every family has developed their own unique coping strategies over the past year – the same can be said for online mediation. Mediators are thinking creatively about ways to support couples, whether that is with early/late sessions after the kids are in bed, or if necessary with one party logging on from the office/car to allow some privacy. Mediators are also much more conscious about what happens between sessions, after the video and audio is switched off.

Online mediation is not ideal, but for some it is much less daunting than travelling to a face-to-face session. They can join from their own kitchen, with a cup of tea, wearing slippers. Often video calls encourage people to be more polite – we have to let each other finish our sentences before the “microphone” gets “handed over”. Sessions are shorter online, to avoid “screen fatigue”, but in my experience can be more efficient.

Co-mediation has become increasingly popular during the pandemic. This involves two mediators, who work together to manage the discussions. An extra pair of eyes and ears is invaluable to observe and gauge reactions, along with another pair of hands to help share documents, schedules and ensure everyone is on the same page (sometimes literally).

The mediator’s role is to manage the discussions and build a bespoke process for each couple. This sometimes involves bringing in other specialist professionals – for example:

– Family therapists can help to improve communication and reflection;

– Child-inclusive mediators can be asked to speak to the children about their wishes and feelings so that they also have a voice in the process (usually only those over the age of 10);

– Financial advisers can provide information about options for settlement and ensure both parties understand their finances;

– Experienced barristers/private Judges can be asked for their views on how a court would approach specific points in dispute, which can be particularly useful for breaking deadlock;

– The parties’ lawyers could also be invited to join discussions to support their clients.

Mediation is not the right process for everyone. It is certainly not appropriate for any families who would need the “safety pathway” which formed part of the recommendations in the recent Family Solutions Group Report. But for others it can be a swift, cost-effective process that allows couples to make decisions that work for their families from the comfort of their own homes.
Mediation can be daunting; it takes courage and patience; but it offers things that have been in short supply over the past year – hope and positivity for the future.

Lauren Evans
Written by Lauren Evans, Senior Associate and Family Mediator at Kingsley Napley

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