Failings of Mediation

Mediation Failure

“Like coming to terms with a bereavement”, is how the DHSSPS define parental
separation and issues surrounding residence and contact with children via the family
mediation handbook. Alternative Dispute Resolution (ADR) or mediation has cost the tax
payer millions of pounds in research and operational costs, as this is not a free process the
uncountable cost of family mediation in the UK cannot be measured.
Mediation is best described as a process rather than an outcome. The main goal of mediation
is to help parties come to a mutual solution through open communication. Even if a final
solution isn’t reached, it doesn’t mean that mediation has failed, since many intermediate
issues and problems may have been solved along the way. This however does not omit the
need for litigation with a resulting judicial order made in the best interest of the child.

A study (link) in 1999 in Northern Ireland, 4 years after the implementation of the Children’s
Order, specifically stated, “Initiatives to promote the use of mediation services in order
that parents may resolve conflict”, from this early stage in the development of mediation
services in N.Ireland, mediation is seen as a process rather than a outcome. The other notable
findings from this study were the lack of early intervention and help and support services for
fathers.
An extensive research project, Monitoring Publically Funded family Mediation, was carried
out in England and Wales and resulted in a press release from the Lord Chancellor’s office
via Lord Irvine in 2001 that stated that mediation does not work;
“The government is committed to supporting marriage and to supporting
families when relationships fail, especially when there are children involved. But
this very comprehensive research, together with other recent valuable research
in the field, has shown that Part II of the Family Law Act (i.e. mediation) is not
the best way of achieving those aims. The government is not therefore satisfied
that it would be right to proceed with the implementation of Part II and
proposes to ask Parliament to repeal it once suitable legislative opportunity
occurs.”

As reported by the Guardian Newspaper in 2005, Divorce and Mediation Schemes Flop. 47
couples used this publically funded scheme of which 23 actually finished, in terms of the case
load of contact and residence cases in the areas in where this scheme was trailed this project
was a failure. Later in parliament Margret Hodge claimed that this project was a failed effort
to neutralise the ongoing support from the public for fathers groups.

Furthering on from mediation being used between separating parents, mediation is now being
advertised to grandparents (link) by National Family Mediation.




As there is no presumption of contact or residence between a child and its father mediation in
N.Ireland will not be nothing more than a process to aid parental separation. When faced with
an obstructive parent mediation is not an outcome to giving children contact with their
parents, the final outcome of mediation is not binding and in effect not enforceable. When the
head of the Gender Equality Unit, Eileen Sung, was presented with this concept it was stated
by Sung that “surely there needs to be a set of principles surrounding shared parenting”
(link).

The Families Matters Strategy 2009 (link) document produced by the DHSSPS engages the
notion that mediation is a solution:
4.29 Relationship Support and Family Mediation: We recognise that emphasis
must be placed on intervention at the early stages of difficulty in a family, before
potential breakdown. Marriage and relationship support, such as family
counselling, enables adults and children to have access to information, advice
and effective support at key life stages and at particular times of challenge or
crisis, which may be associated with the start (or an increase in) relationship
difficulties. We recognise the effect relationship counselling has on helping
families stay together.


It is highly unlikely that this notion is an achievable outcome given that no responses to the
consultation of this document came from groups representing fathers (link). As per the
respondents to the families matter we can class the document as a subjective social science
study and not an objective statement of truth. Had the voices of fathers who have been
through mediation failures that ultimately ends in litigation were listened to there would not
be such a promotion of mediation that is either privately or publically funded.


With all the supporting research that mediation does not work it is questionable on how
Health Minister Michael McGimpsey could state “Family Mediation provides this vital
and confidential support service and enables couples to achieve improved post-divorce
relationships between themselves and their children” (Link).
There will be no workable arrangements via mediation until a social attitude to shared
parenting that is supported by law is created. The best interest of the child principle as stated
by parliament is that the best interest of a child is gained by maintaining the love and care of
it parents, a principle that has yet to be implement and in N.Ireland has led to 15 years of
needless cases that have cost hundreds of millions of pounds of tax payers money.



As advertised By the HSC (link), mediation in 2010 is being given free of charge to those
who have not yet faced litigation. Most notable in this new approach mediation is being
advertised as the empowerment of parents, parents do not need empowered children need
laws and regulations that will stipulate that upon separation children will be able to see their
parents as equals and their parents treated as equals.
Although not worded as such by the HSC, the HSC are recognising that the emotional
trauma that can occur through parental separation needs to be fully addressed. Even before
parental separation there is now a social attitude that upon separation that a father in most
cases will have to leave his home and his children and in the vast majority of cases have to
seeking a judicial order to have contact with his children. What the government are now
doing is attempting in their words to “empower” fathers to accept that they can no longer be a
parent to their child.
FUNDING HAS BEEN MADE AVAILABLE TO SEPARATING COUPLES WHO
HAVE NOT YET BEEN THROUGH THE LEGAL SYSTEM, TO ACCESS FREE
MEDIATION SESSIONS.
PARENTS CAN NOW AVAIL OF A FREE, INDEPENDENT APPROACH TO
SEPARATION THAT ENABLES PARENTS TO BE EMPOWERED.
FAMILY LIFE TODAY CAN BE STRESSFUL, DEMANDING AND COMPLEX.
MAINTAINING GOOD RELATIONSHIPS BETWEEN PARENTS AND CHILDREN
IS CRUCIAL TO OUR WELL BEING AND HAPPINESS. FAMILY MEDIATION
OFFERS AN ALTERNATIVE TO CONFLICT WHEN FAMILIES EXPERIENCE
DIFFICULTIES DURING SEPARATION OR DIVORCE AND HELPS REDUCE THE
TRAUMA OF SEPARATION.
FAMILY MEDIATION CAN REDUCE THE TIME, AS WELL AS THE
EMOTIONAL AND FINANCIAL COST OF AN ADVERSARIAL PROCESS.
AVAILABLE ACROSS NORTHERN IRELAND.
http://www.communityni.org/sites/files/communityni/imagecache/image_story/images/content/hscblogo.gif





Mediation like many other areas of family law has become a profitable income, reported in
the Independent ;
“A mediator earns between £25,000 and £30,000 rising to around £35,000
with a management or training role. Workplace mediation pays upwards
of £350 per day.”

Like many other areas governing cases involving separating parent’s mediation is acting as a
delay process, and is acting against the best interest of the child in terms of written law where
it stipulates that any delays prejudice the case. To take stock in the case of parental
separation, parents could face a 3 to 4 month period for mediation, if unsuccessful then
litigation is required, crossing over into litigation could involve a waiting period of up to 6
months to secure if needed legal aid and for the case to be listed. Family law cases in
N.Ireland are according to the courts service taking 4 months to reach a final order, at the
very least in the vast majority of cases fathers could be waiting at least a year to resolve
contact cases regarding obstructive mothers, a year apart from their child that will prejudice
the case as after a year the parental bond that was once such an important factor in a child life
is gone (parental alienation).
While children can develop satisfactorily provided they have a secure attachment with at
least one intimate caregiver, the optimum for infants and young children is three secure
attachments
(Hrdy, 2009 - p.130).
Polling for Breakdown Britain found that if you are not brought up in a two-parent family
you are:

. 75% more likely to fail at school
. 70% more likely to be a drug addict
. 50% more likely to have an alcohol problem
. 40% more likely to have serious debt problems
. 35% more likely to experience unemployment/welfare
dependency


(Centre for Social Justice, December 2009)
The underlining social dynamics are clear that there needs to be legislative changes to
contribute to a social change in attitudes to the roles and responsibility of parents, process
like mediation are not the solution and should not be enforced until laws are created to make
the outcomes of mediation binding in terms of parental separation.
Steps must also be taken to ensure that mediation is not pushed so far onto parents that it will
damage the welfare of children involved, as by attempting to remove contact and residence
cases from the courts could lead to a dilution of reported child abuse, more commonly
emotional abuse, and the action ability of social services of such abuse.