Ian Walker - Mediation and Safety

Ian Walker – Solicitor/ Mediator/ Arbitrator

Mediation and Safety

Safety

Before Mediation is arranged we will consider very carefully whether Mediation is suitable for a family and that it is safe for the participants and their children. It needs to be safe before during and after any mediation meeting.

As mediators, we are very much of the mindset; first do no harm. We want to assist families to find solutions and to improve their current situation. If there are not reasonable prospects of achieving this – then mediation is not suitable.

Risk assessment

Before we are satisfied that mediation is a suitable process for a couple (and their family), we will undertake a risk assessment as part of our screening process.

Our screening process is rigorous and we will meet with each of the participants separately to check suitability for mediation and to assess safety issues.

 

Safety is an on-going priority and we will end mediation if it became unsafe.

Options for mediation

We are able to look at options, such as staggered arrival and departure or the couple remaining in separate rooms and or being accompanied by a friend or their Solicitor, in order to make mediation viable.

The coronavirus pandemic commencing in 2020 has meant that the use of videoconferencing for meetings has become widespread. Mediation is now routinely undertaken through videoconferencing.

What is important is to set up a process which is safe, before during and after the mediation meetings.

Lisa Holden – Solicitor/ Mediator. Head of our Family Mediation Team

Mediation by videoconference

Videoconference mediation means that each of the couple can attend the meeting from a safe place. There is no need for separate arrival and departure or worry about what happens when waiting for the meeting to start or being in the same room as the other person. Video Conference technology is also preferred by many clients for family mediation because of the additional convenience that it provides.

Video Conference mediation does raise additional issues regarding safety – particularly if the couple are still living in the same property. Where a couple are showing a property – mediation is less likely to be suitable by video conference in comparison to face-to-face mediation. On the other hand – cases which might not have been suitable for face-to-face mediation – might now be suitable for video conference mediation. What is important is to assess each case individually and to understand what the safety issues are and what the couple are comfortable with and how each of the couple is being supported.

Viability of mediation

Viability of all mediation – whether by videoconference or face-to-face will depend upon how genuine each of the couple is, in their commitment to negotiate and their willingness to compromise.

Negotiated solutions are about finding common ground and situations that are workable for both and which provide win/wins.

Negotiation isn’t about expecting the other party to agree to everything you want – and you not giving them anything that they want.

Where children issues under discussion – workable solutions usually also require a willingness on one party to be more patient then they would wish – and the other party to perhaps allow things to progress with slightly more speed than they might have preferred – but on the basis that there are tangible milestones which can be met and which can allow progression.

The court solutions do not always provide perfect solutions

As solicitors, we have seen cases over the years where a parent who has been abused has ended Court Proceedings with a Judge having imposed on them a greater level of contact between their child and the other  parent than they are comfortable with. The Judge may also have not believed some of their allegations. The abused person can feel that arrangements are unsafe and out of their control.

With court proceedings – the decision-making responsibility moves from the parents to the judge. The judge will make decisions based upon the evidence that is presented. Judges will make decisions which are unsatisfactory to either or both parties. The dissatisfaction can be to differing degrees. Sometimes both parties are dissatisfied.

With mediation, decision-making remains with both of the couple

It is complex and the mediator needs to be cautious, but sometimes mediation can actually work better for an abused parent. This is because the plans and arrangements that come out of mediation must be joint plans.

This means that they cannot go further or faster than BOTH are willing to. The parent who has been abused therefore retains a share in the decision making and a veto, which they would not have in Court.

This is complex and is something which would need to be discussed at length before any process is set up. Viability of mediation depends upon the issues, the parties and the potential risks.

Child Protection

AS we make clear throughout this website, we are very child focussed.

Child protection is something that we take extremely seriously.

All of the mediation governing bodies have child protection policies which derive from the Code of Practice of the over-arching Family Mediation Council. (FMC).

The FMC Code states

“Where it appears necessary, so that a specific allegation that a child has suffered significant harm may be properly investigated, or where mediators suspect that a child is suffering or is likely to suffer significant harm, mediators must ensure that the relevant Social Services department is notified.”

“Where mediators suspect that any child is suffering or likely to suffer significant harm, they must advise the participants to seek help from the appropriate agency. Mediators must also advise the participants that, in any event, they are obliged to report the matter to the appropriate agency”

“Where mediators consider that the participants are or are proposing to act in a manner likely to be seriously detrimental to the welfare of any child of the family or family member, they may withdraw from the mediation. The reason for doing this must be outlined in any further communication.”

So, if we become suspicious that a child has suffered or is at risk of significant harm, we MUST report this to Social Services.

Social services must investigate any report and the mediation would not be able to continue until that investigation is complete. This is not to say that mediation cannot continue afterwards. It all depends on what the outcome of the investigation is and how the parents wish to proceed and whether they can safely.

Our founder, Ian Walker has been a member of the Law Society Child Law Accreditation Scheme (Children Panel) since 1996 and so we have an acute awareness of what constitutes significant harm. We also have one of the largest teams of childcare law specialists in the South-West.

If parents have got themselves in a mess over their children’s safety, it is important that they put their children first and seek help to make sure that safety issues are sorted out as soon as possible.

What is viable and achievable within mediation depends on the skill of the mediator and the extent to which there is common ground between parents. We are always very cautious when there is a safety issue and take Mediation and Safety very seriously.