Mediation Flashcards
What is the goal of mediation
´ The goal is “to help separating and divorcing couples to reach their own joint decisions about future arrangements; to improve communications between them; and to help couples work together on the practical consequences of divorce with particular emphasis on their joint responsibilities to cooperate as parents in bringing up their children.”
´ Lord Chancellor’s Department 1995
What is minimal intervention mediation
´ Ensure effective communication between parties, but not to influence content of the agreement. Cannot influence the agreement even if it is unfair, because it should be the decision of the parties.
´ Have a screening meeting before starting mediation to decide if mediation is appropriate (e.g. has there been serious violence in the past?).
´ During mediation, if they become concerned that one party is being taken advantage of, they stop mediation and suggest the parties seek legal advice.
What is direct mediation
´ Can provide additional information and seek to influence content of the agreement if it is clearly unfair to one party.
Can direct and minimal mediation overlap
´ Can provide additional information and seek to influence content of the agreement if it is clearly unfair to one party.
What is therapeutic intervention
´ Focus is on the relationship between the parties, and not the dispute.
What is Med Arb
´ If the couple cannot reach an agreement then the mediator becomes an arbitrator and determines a solution (based on discussions) and the parties agree to be bound by the decision
What makes a good mediator according to Marion Stevenson
´ Empathy: awareness of emotions that will be involved and supporting the views of parties.
´ Impartiality: in order to solve the problem, the mediator must enable them to find solutions instead of pressurising or advising in favour of certain solutions. This is important to maintaining trust in the process of mediation
´ Questioning: keep questioning what is the best approach.
How are disputes with children sorted
´ Mediation for disputes involving children are the focus of many mediation schemes.
´ The facilitator may have social work training.
Can you get legal aid for mediation
´ If someone applies for legal aid for a family dispute, they will not usually be permitted to receive it (if suitable) if they then refuse to engage in mediation.
´ Family Procedure Rules 2010: expectation that any applicant taking proceedings for financial relief or orders for children would have first attended a meeting to determine if the dispute can be resolved by mediation (mediation information and assessment (MIAM) meeting).
´ Then under Children and Families Act 2014 s10 attendance became compulsory (unless a victim of abuse).
´ Aim is to divert litigants from court.
´ This aim has arguably been supported by the withdrawal of legal aid from family proceedings (unless there is a risk of abuse to the applicant or relevant child).
´ Legal Aid Agency will pay for a MIAM lasting up to two hours. This provides information on mediation and then there may be further support for mediation for those who are eligible.
What does the legal aid, sentencing and punishment of offenders act 2012 say about legal aid for mediation
´ Schedule 1: legal aid for family disputes is limited to care, supervision and protection of children, child abduction, and domestic violence.
´ Other family proceedings may be covered if there has been or there is a risk of domestic violence.
´ Domestic violence for these purposes is defined as ‘any incident, or pattern of incidents, of controlling, coercive or threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.’ (sch 1, para 12(9))
´ When proceedings relate to a child, legal aid is available if there has been or there is a risk of abuse to the child.
´ Abuse for these purposes is defined as ‘physical or mental abuse, including (a) sexual abuse, and (b) abuse in the form of violence, neglect, maltreatment and exploitation’ (sch 1, para 13(3)).
How has LASPO 2012 affected legal aid for mediation
decline in mediation. Solicitors are needed to channel clients towards mediation, and without legal aid clients aren’t engaging with solicitors.
Prior to LASPO 80% publicly funded MIAMs were referred by legal aid lawyers, and post LASPO this fell to 10%.
What does PD 3A say about mediation
“Attendance at a MIAM provides an opportunity for the parties to a dispute to receive information about the process of mediation and to understand the benefits it can offer as a way to resolve disputes. At that meeting, a trained mediator will discuss with the parties the nature of their dispute and will explore with them whether mediation would be a suitable way to resolve the issues on which there is disagreement.”
What are the benefits of mediation
- cheaper for state
- Better outcome for both parties
- Looks beyond law for an answer
- more effective in long run
- better communication
What are the disadvantages of mediation
- Impossible to be 100% impartial
- Favours stronger party
- Social norm influences
- Child interests not as important
- Lack of expertise
What are some alternatives to mediation
solicitor negotiation, 1 lawyer for both parties, collaborative family law (Open but privileged sharing of advice and information. Four way meeting designed to reach an agreement.Negotiations are interest based. Identify interests and then negotiate to meet them. Commit to resolving issues without involving the court. Sign a formal participation agreement.)
