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Some Recent Examples of Mediation and Court proceedings, and of Mediation in entrenched children cases

A. Mediation “in the shadow of” the Courts

Voluntary All-Issues Mediation bringing lengthy proceedings to an end

Sam and Jane had separated when Anita was 4 months old; Sam had not seen his daughter since then. By the time she was 2, there were contested County Court proceedings in respect of both contact and of financial provision. Contact was awaiting completion of a psychological report on Sam; their Barristers suggested that the issue of finance alone be referred to mediation to try to avoid the imposition of the Statutory Charge, costs on each side already being £7,000.00. Over six mediation sessions, an agreement was reached over finance (not made into a Consent Order so as to avoid the Statutory Charge) and sufficient trust was gained for there to be both discussion and conclusion in respect of contact arrangements, all proceedings being withdrawn. Jane commented;

“This time a year ago I would never have dared hope that I would be where I am now. The consequences of the on-going legalities had it not taken the route of mediation, don’t bear thinking about …. Best of all, Anita is a happy, well-balanced child, with at least some form of contact with her father – something I am sure would not have evolved had we not had you both to guide us through a legal and personal nightmare…”

All Issues mediation in the shadow of proceedings and domestic violence

Julie and Steve attended assessment meetings and agreed to mediate about contact and finance issues. At the first mediation meeting it became apparent there had been intervening violence, an injunction was now in force, and a CAFCASS report ordered in respect of contact. Nevertheless, they had attended mediation to try to make progress, Julie in good faith, Steve (who has enduring mental health issues) without any degree of trust. Over a series of meetings communication and a revision of the terms of the injunction were addressed, contact was developed, and short and long term financial settlement achieved; the Court being informed of developments throughout and the request for the involvement of CAFCASS being rescinded.

Grandparents’ contact within proceedings

CAFCASS were already preparing reports when FMM was asked by solicitors to undertake mediation. The case involved maternal grandparents who were seeking contact to granddaughter aged 5. The child's mother had died after giving birth in very tragic circumstances. The family was at war and father was preventing contact. Contact was recommenced following mediation sessions with father and grandfather.

Direct involvement of child

An application to court had been made for contact to a 13 year old boy. Mother had left the family home and since then the child had refused to have anything to do with her. The Judge had given the parties the option of trying mediation as an alternative to litigation. Various meetings were arranged which included a three way meeting with the child, his mother and father, resulting in an agreed order.

Public law proceedings

Solicitor for father contacted FMM to arrange mediation in a public law case where care proceedings were being considered. The court entrusted the mediators with the task of helping the parties communicate better in the hope that the situation may improve for the children. The case had a history of domestic violence and serious child protection issues.

Sharing of mediation outcomes within Residence proceedings

Sue had issued a further Residence Application following a Residence Order being made in favour of Nigel a year previously in respect of their 2 year old son David. Sue had suffered a breakdown but now felt it was time for her to regain the care of her child. Four mediation sessions took place whilst there were ongoing residence proceedings, copies of Interim Summaries being released to the CAFCASS Officer with the permission of the parties and their Solicitors. Eventually agreement was reached that lead to the withdrawal of the Residence application.

Robust pre-proceedings mediation in the shadow of criminal and injunction proceedings arising from Domestic Violence

Tanya was the subject of a serious assault by Daniel at the end of their relationship. Daniel then denied the assault in criminal proceedings and Tanya had to give evidence against him. Following his conviction, no contact had taken place between him and their two year old daughter for nine months. Following the commencement of contact proceedings, in three sessions of mediation, commencing on a shuttled basis and moving to working in the same room, Daniel was able to apologise to Tanya not only for the assault but also for his conduct in relation to the criminal proceedings. Trust was rebuilt over a period of months leading to an eventual agreement about regular contact, a withdrawal of the proceedings, and a resumption of direct communication between the parents about their future parenting.

Financial mediation in the shadow of ongoing Ancillary Relief proceedings

George and Carol are both head teachers approaching retirement age. They attended mediation six years after separation, two years after the commencement of Solicitors’ negotiations and shortly before an FDR, having not met face to face since the separation. The main issues were their respective interests in the family home and their pensions, given threats of subsidence and redundancy. Over four sessions with mediation costs of approximately £700.00 each they were able to negotiate terms which lead to the making of a Consent Order. The benefits to them were direct communication, expedition and cost-effectiveness.

Use of independent expert in Financial Mediation

Richard and Alison's sole asset was an agricultural property, subject to an agricultural tie which was likely to have a significant impact on the value of the property; on this issue also depended their ability to provide separate properties, to separate physically, and to make arrangements for the children's future. Following a mediation process mirroring the disclosure and negotiation process in Ancillary Relief litigation, an independent expert agricultural valuation was commissioned by The Mediation Centre on the basis of which agreement was reached and a Consent Order filed.

Hybrid Civil/ Family Mediation following stay of Proceedings

The final hearing in Chancery proceedings over respective interests and charges in a family farm was stayed pending mediation between the four parties, two of whom were divorcing spouses in ancillary relief proceedings themselves stayed pending the outcome of the Chancery proceedings. Total costs to date in the four year long proceedings were over £30,000. In a hybrid family/civil mediation lasting one day, attended by the four parties and their solicitors or counsel, a Tomlin Order was prepared in the Chancery proceedings, and a publicly funded confidential family mediation also produced a Memorandum of Understanding in respect of the ancillary relief proceedings. The total cost to the four parties was less than £2,000.

B. Examples of Court Directed Appropriate Dispute Resolution

Court Directed “expert” ADR referral (1) BB and MD

An jointly instructed “expert” referral was made to The Mediation Centre by the Children’s Guardian in a four year long intractable contact case. Over a period of four sessions, with parties who had not met for four years, the mediators enabled the parties to reach agreements to bring the litigation to a conclusion and provided an assessment to the Court as to the capacity of the parents for ongoing co-operative parenting – see article by Neil Robinson at 2006 Family Law 139.

Court Directed Expert ADR Referral (2) RJB and EAB

A formal referral was made for an assessment as to the capacity of parents to co-operate. There had been four years of proceedings involving a father who was a leading participant in Fathers for Justice. In desperation the child's Solicitor obtained an Order for The Mediation Centre to be instructed to assess the parents’ capacity to co-operate in mediation. In two lengthy sessions it was possible to prepare a Report with a definitive assessment that no such co-operation and communication were possible, arising from the allegations of bullying and abuse during the marriage, the father's refusal to give up his high profile demonstrating (he had ambushed the National Lottery broadcast two days before the first mediation session), and his indication that he was not prepared to accept the word of the child as expressed in mediation through the Guardian. The result of that definitive assessment was that the proceedings were concluded by consent at the following directions appointment!

Court Directed ADR Referral (3) – LS and RH - ongoing

In a multi party residence dispute lasting two and half years, a five day final hearing was vacated and replaced by a half day hearing to follow specific work to be undertaken by The Mediation Centre in relation to communication and parenting planning; three sessions ae planned, and it is already clear that progress will be made, with young parents who have been severely traumatised by the severity of their litigation and are dealing with a recent change of residence

C. Examples from 9.5 Cases

These are cases where Neil Robinson had been instructed as the representative for the children and where, 'mediation style meetings' have taken place negotiating similar agreements and boundaries as in the CD ADR Model. Of 15 cases, in 7 it was felt appropriate to conduct joint meetings all of which resulted in definitive assessments. Of those, 4 resulted in positive assessments leading to an agreed outcome of the proceedings. These were as follows:

1. Following an accident in childbirth, both mother and child were left severely physically disabled.

Separation took place almost immediately thereafter and the child was brought up by father. After two years of contact proceedings with the maternal grandparents intervening, parallel financial proceedings, penal notices on both sides, and no communication between the parties, a 9.5 Direction was made. A series of mediation meetings with the assistance of sign language interpreters produced agreement on all matters and a conclusion of the proceedings.

2. Terminally ill and multiple amputee mother caring for severely autistic teenage boys,

and a father with some personality difficulties, had been arguing residence and contact for two and half years. Shuttled mediation sessions within what by then were also care proceedings lead to a sustainable agreement over contact.

3. Parents of two boys, where there had been no contact or communication between the parents for three years,

engaged in a single mediation session meeting producing a clear message from them both to the boys that they wanted contact to recommence. The boys’ continued refusal lead to a referral to therapy but eventually an agreement that the proceedings would be concluded with no direct contact.

4. Unrepresented parents waged an eight year war through litigation over contact issues.

The father is a professional mediator and the mother with a social work background. A number of contested final hearings led to a 9.5 direction, at which time the Court also ordered that the parties 'attend voluntary mediation.' This predictably produced one mediation session with no outcome. The children's guardian and Solicitor then obtained a further order that the parents attend 'mediation meetings' with themselves, and agreement was reached over three meetings on all matters to lead to the end of the proceedings. This last case is a good example of the difficulties faced by the judiciary, perplexed by how best to use the alternative ADR resources.

All these four cases were characterised by:

1. The cost and length of the proceedings prior to attempted ADR.
2. The speed of resolution following the intervention.
3. The absence of a contested hearing.

In all senses the approach adopted by Neil Robinson as 'lead mediator' mirrored the CD ADR prototype model. It is however apparent that many mediators and guardians will consider that this is not a role that they can safely fulfil without a conflict of interest (it has already resulted in NR having to give evidence and be cross examined on one occasion). Where successful, the process resulted in a genuine transformation of the forum for dialogue (se 2006 Family Law 48).

D. Two Public Law Cases resolved by ADR

First Public Law Case GW and JE

This was a Court directed mediation with a joint letter of instruction asking for an assessment of the ability of mother and grandparent to work together within the constraints of the proposed Care Orders, which would place the children with their grandmother. A single mediation session informed by the letter of instruction and Court documentation created agreement between the adults as to how they would manage in the future, and a set of options as to how they might continue dialogue once the proceedings were ended. The mediation appointment took place one week before the final Care Hearing, instructions having been received one week before that; the final hearing was dealt with by consent.

Second Public Law Case TN and GN

Jointly instructed referral related to the relationship between grandparents, one of whom was to be the carer and the other provider of significant contact under a Care Order because of the shortage of time, the mediator attended an advocates meeting to obtain her information, rather than receive the full bundle of papers. A single mediation session again provided an opportunity for agreement as to how communication and dialogue might take place in the future. The meeting was attended jointly by the children's guardian who commended the parents for their work. Again a Consent Order was made at the hearing.

Although these cases both involved adults who had had no dialogue or communication for a number of years, it is at least arguable that there was no significant entrenchment. Whether however the 'mediation' could have taken place on a voluntary basis, and whether the Court would have been satisfied with no formal outcome in the form of a Report, is arguable. In each case, the costs of co-mediation, consideration of papers or attendance at an advocates meeting, and preparation of the report were around £800.00.

© Neil Robinson for Family Mediators Association; case examples provided by Family Mediation Manchester and The Mediation Centre, Stafford
September 2006

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