Marilyn Stowe talks: call the family mediator?
June 22, 2016 2 comments
Last night, the first in a three-part documentary series was shown on BBC2. Equal parts frustrating and intriguing, Mr v Mrs: Call the Mediator offered a behind-the-scenes look at professional mediators struggling to steer different divorcing couples through this much discussed alternative to the family court. In this video I give my own reactions and set out what I think would be a much more constructive and effective approach.
Meanwhile, Stowe Family Law Managing Partner Julian Hawkhead also watched the show and offers his own considered reflections below. Julian, based in our Leeds office, is a very experienced family lawyer-mediator.
Mr v Mrs : Call the Mediator – a view from the inside
Over the last couple of years, I’ve fielded a few enquiries from TV companies wanting to know whether I would be willing to offer up clients who would themselves be willing to participate in a new documentary on family mediation. I have on each occasion politely declined. I know my clients would wish to preserve their privacy and try to maintain their dignity. I’ve often wondered what sort of person would be willing to expose their personal lives on screen for the nation to watch…and then along came Mr v Mrs : Call the Mediator. Full of catching jingles, sideways glances and interesting back stories, does this BBC2 documentary offer a fair insight into the world of family mediation?
The latter has, of course, has been at the forefront of the government’s recent cost-cutting attempts to keep separated couples away from the courts and try to mitigate the carnage caused by the withdrawal of legal aid. Attendance at a mediation information and assessment meeting (MIAM) is compulsory in many cases now before the parties can go to court. Ongoing attendance at mediation however is not compulsory. It cannot be for the simple reason that the voluntary nature of mediation, a process that either can pull out of at any point, is a fundament principle of this “alternative” method of resolving disputes. I was hopeful therefore as a family mediator that this three part fly on the wall series would give the public some insights into the positives of mediation.
We met several separated “couples”. Sue and Peter had been married for many years and had adult children when Sue left Peter for his former boss Bernard , who is 25 years her senior and pushing on for 80. Her initial sentiments of guilt at leaving Peter had been replaced with a pragmatic realisation (egged on in the eyes of a suspicious Peter by Bernard) that she couldn’t afford to leave her marriage with nothing. Her statement in their first meeting was that she would not accept anything less than half. How would this end up? We met Nicky and Martin, a couple who couldn’t agree how and when Martin would see their two young sons. We watched them sat side by side waiting to go in to see the mediator, each looking at their phones, not able to even acknowledge each other before they ventured in and vented their frustrations.
We watched Sue and Peter them go through at least four sessions of mediation. In the first session, Peter was facing the prospect of losing his house but in the intervening period before the next meeting he was, to his own apparent surprise, able to raise the funding to buy out Sue’s half interest in the house. The only snag with his offer was that it was based on a valuation of assets from the date of separation – a date that was significant to Peter because it was the day he felt that Sue walked out on their partnership.
At the second meeting Peter made Sue a ‘take it or leave it’ offer. Their mediator read from the script of text book mediation platitudes. She said the right things about mediation and compromise, she made comments about the concepts of “fairness” and the principle of equality, but I’m sure lawyers up and down the country were crying out with frustration that they knew what the answer was – with an obviously long marriage and no dependent children then surely it’s a straight 50:50 split? But my lawyer friends, that’s not how mediation works. Mediators don’t impose outcomes on the parties, nor do they tell them what they think the right answer is.
Nevertheless, what was starkly missing from this mediation process was a framework. The value of the assets didn’t seem to be clear, there was no mention or suggestion that each party should seek some independent legal advice and the mediator seemed content to plough on with Peter and Sue having no apparent understanding of the law or any objective appraisal of what their options were. Now I appreciate that the limited time available in a one hour documentary means that edits have to be made but surely a balanced insight into mediation should have shown the process and the role of the mediator in a better light? My reaction in watching this programme – and I say this as a mediator who believes in the process and the advantages of avoiding court proceedings – was that on the basis of this programme I wouldn’t do it, not least because I would have no idea how any agreement could ever be reached.
Sue received Peter’s offer and predictably had a wobble. She indicated that she was willing to consider his offer and Peter took this to mean that he had an agreement. Did the mediator explain to them that the mediation process doesn’t end in a formal agreement, it ends with a common understanding that they take to their lawyers to ratify and draw up into a binding agreement? However, Sue comes back to the next session and announces that she hasn’t actually got full disclosure! Peter expresses dismay and disappointment as he thought he had a deal. He concedes that he may need to provide “full disclosure” but only if Sue confirms that there is an agreement reached. A classic case surely of putting the cart before the horse? I shouted at the television “What have they been talking about for the three previous sessions? What has the mediator done to identify the assets that they are supposed to be trying to sort out?” It was quite simply poor management of the mediation process.
Peter stood up and announced he was leaving. In the mediator’s farewell speech she finally suggested that they might want to take some separate legal advice. Too little too late? Thankfully not in this case as we later discover that they were able to reach an agreement and Peter was able to keep his house.
I could continue with my critique of the mediator’s techniques. There were several occasions when I was shouting at the telly but at the end of the day the show was designed to be classic ‘car crash TV’. This wasn’t a documentary designed to show mediators displaying their skills in helping people find solutions to their problems any more than The Apprentice is a lesson in how to succeed in business. There were no reality checks. The mediators often sat there watching the parties bicker. As a solicitor and a mediator I have the experience of many years of litigation but I also have many years’ experience of securing settlements and a lot more of my cases have settled than have needed a Judge to decide the outcome. I bring that knowledge and experience with me to the mediations I undertake. Of course I am impartial When the parties want information about processes and the way a Court approaches things, in order to help them evaluate costs against the benefit of the desired outcome, I can help them to find solutions and flag up matters where they will need specialist advice. The same goes for more technical matters such as tax, company structures, and trusts,
None of this was displayed by the mediators last night’s episode – but perhaps it was just edited out.
Ultimately this was a programme about people and that is what I found most compelling about it. I come similar stories every day in my work as a solicitor and as a mediator. There was the separated parent who tries to control how their former raises their child, who sends links to good parenting websites, who sends videos on how to brush teeth, who cannot accept that they are two different parents who both clearly love their children very much but who have different outlooks on life and how to raise children. We saw them finally able to speak to each other – but ironically only once they had gone to court.
Then there was the father who dearly wants to see his children, who will travel 45 minutes to a contact centre to collect them. The mother accepts that this is not working but ultimately neither can get past the baggage of their relationship history, baggage which they bring into every meeting. The mistrust, lingering feelings, hurt and the upset. The children, who should be focus of all their conversations, soon got lost amidst all the angry exchanges. It’s all very real, equally compelling and repelling and to bare that to the world at large takes courage and maybe even a hint of vanity. I couldn’t help but feel that all the people involved should perhaps have kept their private lives private. In my view both parties in each case (and the mediators as well) should have focused more on finding solutions and less on performing for the cameras.
Separation is a traumatic experience for everybody involved no matter who is perceived to be at fault. Mediation in the real world, away from TV cameras, is a valuable process to help resolve problems and disagreements in as dignified a way as possible. It isn’t painless – being in the same room as your ex probably can be. It takes courage but with the right guidance and support from mediators and lawyers it can be sorted out in a way that will last, setting you up for a more positive future.
Mr and Mrs: Call the Mediator, car crash TV?
I was very interested to watch the first in the series of three programmes about what appears to be none qualified mediators advising couples going through family breakdown. Let me explain first of all where I am coming from. I am a trained mediator. I was one of the first mediators in the country actually in the 1990’s. I am an arbitrator, I was a tribunal chair, a judge and I headed up the accreditation system for the Law Society’s family law panel. During the course of the six years I did that I met literally thousands of family lawyers across the country. Many were legal aid lawyers.
My perspective watching unqualified, legally unqualified, mediators trying to help a couple going through, quite clearly, emotional crisis but having real, genuine legal problems and no obvious access to legal advice, my overall view is, it is quite shocking.
When I first began my career in the 1980’s, nobody was denied access to justice because of lack of funds. Even middle-class people could get legal aid; albeit with a contribution. Slowly, legal aid has been eroded to the point where now it is only available to the tiniest sliver of the population for strictly defined cases. It is still available for mediation. Why is this? The government, successive governments have pruned legal aid down to the bone until the 1st April 2013 when for most people it was no longer applicable. If you remove legal aid, it makes it very hard for people to go to court, so there has to be an alternative, or that is the thinking.
Mediation has been ceased on as the panacea to all ills. Well, as we saw last night, that is absolutely not the answer. What we saw last night were people tumbling around, being allowed to shout and yell at their party, inflict emotional blackmail almost on them. Really go for it. But they were doing it in a vacuum. They were doing it in a void because they actually didn’t know what their legal position was. We saw one couple go through their financial dispute, they didn’t have, apparently, access to law and so they didn’t know their respective legal positions. I think, had they know them, then their attitude to the negotiation would have been very different. Equally, a couple fighting over the contact of a child, they didn’t know what the law was and their mediation broke down and it went to court and got sorted out. The whole thing about court is it does provide a solution; it will provide a decision.
I am not going to sit here moaning. I am going to come up with another possible answer; one that seems to me to be a real way forward, one that I could recommend. It is this, I am quite comfortable talking to couples, whether in a mediation or arbitration or in a tribunal setting; I am quite used to it. It seems to me that what we need to do is rethink how a lawyer can advise a couple. Instead of saying a couple need two lawyers, what is wrong, if they both agree, with them having access to just one? Just one lawyer who can get them in, sit them down, explain the law, seek the necessary information from both of them, cross check it, ask for more information, advise them, for example in financial matter, about the need for valuation, about pension reports, perhaps tax advice and so forth and then help them to come to a resolution of their issue but on the basis that the lawyer is informed. The lawyer knows all the different parameters and knows what is likely to happen in court. At the end of that process, both parties, as in mediation, can if they wish go and take their own independent legal advice and they can have independent legal advice if they wish all they way through the process. At the end of the day, they will have been helped to achieve an informed solution to their problem. My guess is it will work; it will cut costs, it will cut pressure on courts to deal with things and it is a sensible outcome. But it needs somebody to get a grip, take a look at the system as it is and say “it is clearly not working”. All of the figure show that for all the pushing to mediation, couples are rejecting it and on the evidence of last night’s programme you can well see why.