Family Mediation Week: Q&A with FMC

In light of Family Mediation Week at the end of January, Today’s Family Lawyer interviewed Caroline Bowden, Family Mediation Council Board Member.

The interview aims to highlight the importance of family mediation, its impact on resolving family disputes, and the evolving trends in this field.

Q.1 Your Experience: Can you share a brief overview of your journey in the field of family mediation?

From the time I qualified as a solicitor, I felt that mediation was probably the best way for couples to resolve their issues.  I was fortunate that my firm was one of the first to have a mediation legal aid contract in the mid-90s.  So after I completed my mediation training in 1997, I started straight away.  I was accredited in 2000 and have been working exclusively as a mediator (thought still a solicitor on the Roll) since 2006.

I have also always had a great interest in the wider policy landscape.  I joined Resolution’s DR Committee in 2008 and left only to join the Family Law Committee of The Law Society in 2017.   That led me onto the FMC Board as their representative.

So I have seen at close hand the journey of mediation in that time.  In the early years, mediation volumes increased, as did the public’s recognition of it. Then came the devastating effects of LASPO, followed closely by the positive development of MIAMs and the strengthening of the Family Mediation Council (FMC) as the profession’s governing body.

My committee involvement has led to personal engagement with some of these changes, perhaps the first being though the government’s 2014 Mediation Taskforce and most recently, via the working group for the upcoming Family Procedure Rule changes, as well as putting forward proposals and responses to the hotly awaited proposed legislation on encouraging couples into early resolution.

Q.2 Family Mediation Impact: In your view, how has family mediation positively impacted the resolution of family disputes?

Family mediation is a fantastic way for couples to resolve their issues upon separation. It is not for everyone, but when it is suitable, I cannot think of a better way than to reach an agreement they have devised themselves, with the active participation of the mediator.

This means that participants should, one hopes, have a much greater chance of having a constructive relationship thereafter, than they would if their issues were dealt with in a contentious or arm’s length way.

When there are children involved, resolving matters in a better way can have lifelong implications.   It is personally very rewarding to curate a process that enables issues to be resolved in a way that is quicker, cheaper and much less stressful than long drawn-out disagreements.

Q.3  Challenges and Solutions: What are some of the common challenges faced in family mediation, and how do you address them?

The greatest challenge of all is making people aware of mediation and its advantages in the first place!

Still the cultural norm is for people to consult a solicitor first, when they are having problems. There is nothing wrong with that of course, but the question then arises: what happens next?   If a couple is suited for mediation, or another form of non-court dispute resolution, is that where they will go?  Without the obligation for solicitors to refer their client to a mediator after LASPO, mediation referrals fell off a cliff.  Even the requirement to refer a client, of whatever means, to a mediator to carry out a MIAM before issuing at court has, to date, more often been ‘honoured in the breach’ and this failure has not picked up upon by judges.  However we hope that the spring’s FPR changes may herald a culture change on this.

Child Inclusive Mediation needs to be funded under legal aid as a standalone payment.  It is not an economically viable service otherwise.

For those on lower incomes, it is vital to bring back legal aid for early advice from solicitors.  It was the ultimate in false economy take solicitors out of the picture in 2014, as the cost impact on multiple levels has just moved and spread elsewhere. This funded legal advice should be linked with an obligation to refer to mediation, after which solicitor’s legal aid should be extended to support clients during the mediation process.  (I suggested this during the government’s 2014 Taskforce, but the kitty was pronounced empty.  One can only imagine how many low-income families would have been saved from going adrift in the decade since, if this had been implemented.)

Once participants are directed to mediation, the challenges are as many and varied as the people we work with.  We have the Family Mediation Standards Board to help us keep professional boundaries and safeguards in place.  We are now a well-regulated profession from the top and supported by our own Professional Practice Consultants, closer to hand.   It is also very good to be networked in with other mediators, for mutual support and advice when things get difficult, as they inevitably will do.

Q.4 Future of Mediation: How do you see the role of family mediation evolving in the coming years?

Mediation has been on the move from the time I started and in the couple of decades before, at its inception.  It always has to look to adapt and respond.  Whilst we are still a relatively young profession, there has been a stability and embedding of who we are over the most recent years.

The Family Solutions Group report ‘What about Me’ has been influential in urging those working with separating families to have a different mindset than before.  Instead of fitting their issues into a court-based perspective, we must view families holistically and primarily, one hopes, within a non-court space.  Being a parent is not a legal issue and should not be treated as such: this ethos is now filtering through into the approach of many more family law professionals than I have ever seen.  Even overtly legal issues must also be viewed through the lens of the long-term best interests of any children involved.

Here are just a few of the topics which I believe are still evolving into this new ethos, both forming it and responding to it (but this list is far from exhaustive):

• Child Inclusive Mediation is undergoing a growth, as it is recognised that children should be offered a space to have a voice (which is different from having to make a choice). This area is developing and maturing.
• There are many models of mediation that being created and established. One of the most widely used one is where solicitors join in.  I know from experience how well this works: all involved in the mediation day or half-day are focused on reaching a financially final and binding outcome, as well as resolving any acute issues between parents.
• The FPR changes and the imminent proposed legislation will, I hope, strengthen the push for families to engage in all and any suitable forms of non-court resolution, rather than resort to court. Though solicitors are the primary curators of a clients journey to date, mediators also have a vital role to play in this within the Miam especially.  Particularly if participants do not also have lawyers, the mediators have an important obligation to explore all forms of alternatives to court.  (Any corresponding obligation for solicitors to do likewise, when advising their clients, would change the landscape much more radically again.)
• Mediators are mindful of what happens after participants leave their office. For divorcing couples, there must be the means by which their financial proposals can be ultimately made into a consent order, to achieve a clean break.  In the last five years, mediators have been able to create the first version of a draft consent order, as part of their outcome memorandum.  This practice is likely to increase in take up: by covering the next level of detail before the couple leave mediation ensures that their settlement is much less likely to unravel further downstream.