In-court mediation has for a few years now been an important part of Cambridge County Court’s service to those going through legal proceedings on a dispute over children. Unfortunately, Cambridge Family Mediation Service was recently forced to withdraw from providing this service when they ceased to be able to fund it. As a result, the partners from Cambridge Family Law Practice have been working with local judges and other local family mediators, including CFMS, to keep the service going. The community of family mediators in Cambridge has agreed to volunteer its time on a rota basis to ensure that there is always a mediator at court on “section 8 days” when matters of children’s contact, residence and specific issues relating to children are addressed.*
Court proceedings between adults about children are rarely legally complex unless there is some risk to the children. If there are complications of this kind, mediation is unlikely to be appropriate. However, where the issue is a parental disagreement about where children should live or how much time they should spend with each parent, or particular matters such as where they should go to school or if they should have a medical procedure, the legal issues are often less complex than the emotional issues between the parents. As a result, the court may feel that it is not the appropriate forum for providing lasting solutions to these disputes and in many cases, that mediation may be a better forum for the families involved.
A judge’s job in these cases is to listen to each side and to make a decision based on what he or she feels is in the best interests of the child, taking into account certain specific matters set down by statute (see the information sheet on children orders from the family court for more details). Mediation, on the other hand, can provide a neutral arena where each person’s concerns about the relevant issue can be examined in the presence of an impartial 3rd party – the mediator – who has no decision-making role, but is trained to assist each person to understand the other’s point of view without making value judgments about who is right or wrong. The decision is up to the parents, who know the child best. The mediator encourages the parents to focus on the child rather than on the details of their own disagreements, and rather than setting them against each other as a court must do, seeks to assist them to work together to find a solution that everyone can live with.
So what happens at court when a mediator is present? The judge will see the parents, listen to what they or their advocates say, and decide if he or she feels that mediation might be suitable. If mediation is considered suitable, the judge asks the mediator to see the parents to explore avenues for settlement. If the mediation is successful and the parents manage to come to an agreement, the judge is there to approve it if necessary. If the parents feel that they need more time to mediate an agreement but would like to look into doing so, the mediator can give them the details of mediators local to them so that they can carry on working on the issue. And if the parents are unable to come to an agreement, their case can proceed in court and the judge will make a decision about what will happen.
As you can imagine, court is not the ideal venue for constructive mediation. By the time parents have got to court, they can feel at the end of their tether, and be determined that someone should make a decision for them, so that they can get on with their lives. Nevertheless, there are often successes. Even if the process is not immediately successful, offering mediation at court can open parents’ eyes to a process that they might not have been aware of previously, and can offer an avenue for compromise that they hadn’t previously seen. If their dispute proceeds to a court order this time, perhaps next time they’ll think about going to mediation instead.
We’ve touched on some of the advantages of mediation before (http://www.cflp.co.uk/christmas-contact-issues/), but the great strength of mediation in children’s disputes is that it can assist the parents to talk constructively to each other and develop strategies for communicating, with the focus on what is best for the children. If there are no risk factors, it is always best for the children that their parents are able to discuss matters relating to them in a business-like manner, whatever their personal feelings towards each other. Mediation is not a panacea and the mediator cannot force parents to agree, but if a court-based service can bring mediation to the attention of the people who need most to know about it, we are proud to be involved. In our view, offering mediation at court can help children of separated parents to grow up with reduced conflict in their lives, and is worthy of the donation of our time and expertise.
Do give us a call on 01223 443333 or email us at firstname.lastname@example.org, or comment below, if you’d like to know more about any of the matters raised here.
*in 2014, contact and residence orders became known as ‘child arrangements orders’