Mediation of Resolving a Dispute

Mediation is a better method of solving child contact disputes than by the use of judges in courts. ‘Currently the majority of parents make their own arrangements for contact, with only about 10% of parents seeking assistance from the courts to determine contact.’ [14] In order to evaluate the effectiveness of mediation I shall firstly discuss how mediation directly benefits children and secondly how mediation is advantageous for the parties involved in the dispute.

It is arguable that through mediation the parties involved may express the desires of the child. Mediation benefits children as the whole process can be viewed as being less acrimonious than the process in which a judge makes a decision in court. Judges are not trained in communicating with children, and generally lack expertise about differences in individual children in terms of language and emotional capacities. Emery discusses how even judges believe that it is fundamental for parents to come to terms on their own about raising their children after divorce. [15] It is arguable that, in the majority of cases, nobody will understand the needs of a child better than the child’s parents. Writing in 1983, three Canadian judges discussed the reasons why the practice of judicial interviewing should be regarded as undesirable, ‘The interview is conducted in an intimidating environment by a person unskilled in asking questions and interpreting the answers of children. In the relatively short time these interviews take, it is difficult to investigate with sufficient depth and subtlety those perceptions of a child which may explain, justify or represent the child’s wishes.’ [16] It could be argued mediation benefits the child as the process is more comprehensive. The court as an institution in itself may be regarded as being extremely intimidating for a child. Furthermore, the prolonged court process may prove emotionally disturbing for the child. [17] ‘About four out of every five cases which are subjected to a mediation process are going to settle, either at the mediation itself, or in the days and weeks following it.’ [18]

Through the process of mediation, the child involved will have the satisfaction that both parents came to an agreement with their best interest as a primary objective. ‘It is certainly in the child’s best interest to know that their parent or parents can take adult responsibility by forging mutually acceptable agreements about their child.’ [19] In addition, the process of mediation encourages co-operation between parties and discourages conflict. As stated by Kennedy, ‘It certainly does not help the children resolve their difficult feelings about the breakdown of their parent’s relationship when they still see them at war’. [20] Mediation creates a process whereby parties are expected to set aside their own personal conflicts and work together for the benefit of the child. This contrasts with child contact disputes which are settled by a judge in court, as stated by Fortin ‘Despite the paucity of the research evidence, it appears that court enforced contact arrangements may actually damage children psychologically, given that it provides further opportunities for conflict between the parents.’ [21]

Judges are criticised for ignoring the short-term needs of the child, in favour of addressing the long-term requirement for the child to have a relationship with both parents. ‘The legal system can be criticized for coming down too heavily in favour of the long-term view.’ [22] Furthermore, judges in court are criticised for failing to respond to problems younger children may be suffering, by merely dismissing them as short-term problems. As stated by Perry and Rainey writing in the International Journal of Law, Policy and the Family, (the legal system’s) ‘tendency to categorize stress-related problems like bed-wetting, crying, and a worsening of asthma and eczema, as short-term and therefore acceptable in the contact context is inconsistent and arguably demonstrates a lack of child-centred thinking.’ [23] Mediation allows for flexibility which is essential for changing circumstances, as stated by Broadbent, ‘Perhaps the most useful and compelling characteristic of mediation is its flexibility. There are virtually no constraints on how and when it can be used.’ [24]

The issue of contact can be perceived in two different ways. Contact may either be viewed as being the right of the parent, or contact may be based on child welfare considerations. By a judge in court resolving child contact disputes means that focus will be placed upon the rights of a parent as opposed to what would be in the best interests of the child. [25] Mediation focuses on categorising contact as being based on child welfare considerations which means that the needs of the child will always prevail. In addition, it is arguable that court enforced contact orders are focused on what the parent’s want, rather then what the child wants. [26] There should be a focus on the child’s needs as oppose to a focus on the parent’s desires.

As well as compulsory mediation being beneficial to the child involved, compulsory mediation can also be seen as beneficial for the parties involved as both parents are able to have a say in the outcome. Negotiation, even if it is compulsory negotiation, is better as oppose to a court order being imposed on the parties involved. ‘The finer Committee on One-Parent Families (1974) called for a new, unified family court in England and Wales in which conciliation would be used as far as possible instead of litigation to settle disputes and encourage co-operation between divorcing parents.’ [27] By the existence of a mediator, both parties can negotiate with a mutual aim of reaching constructive solutions to problems. One may argue that these skills of communication are vital to our daily existence and urge the parties communicate in order to reach their aims, rather then to just rely on the legal system to reach an outcome which one or both of the parties may not be happy with. As stated by Roberts, mediation enables ‘the parties to negotiation in a way that would not have been possible on their own. Ground rules- for example, the right of the mediator to intervene if exchanged cease to be constructive- embody the values that underpin mediation (such as mutual respect and equity of exchange)’. [28] It is beneficial that mediation is compulsory as this ensures that both parties at least try and communicate and in the long term they have the reassurance that they did try to negotiate to resolve their differences. Compulsory mediation can be seen as being essential for those parties who have hostile feelings towards each other, as they are forced to set aside their feelings and negotiate for the benefit of the child involved.

The framework of mediation can be seen as supporting a fairer outcome, in contrast to the decision made by a judge in court. This is because the rules of procedure enable both parties to express themselves fully, and the parties are also allowed to have separate meetings with the mediator within the meeting. [29] Many parents may feel that mediation is a better option for them as they are able to talk freely about practical arrangements, which they may not feel comfortable talking about in court in fear that something they may say may portray them as being disreputable. As stated by Parkinson, ‘many parents need a private forum where they can talk about decisions and practical arrangements, without fear that what they say could somehow be used to discredit them if their case goes to court.’ [30] Mediation is advantageous as it creates a confidential forum for parents to express their feelings. Additionally everything said during mediation cannot be given as evidence to the court. [31] ‘Mediation is a “without prejudice” negotiation process, which means that it cannot be referred to in open correspondence or in court, prior to judgment.’ [32]

Mediation not only offers a better solution for contact disputes than by a judge in court because it is made more inclusive through the process of negotiation, it also a more efficient solution overall. A report by the National Audit Office in 2007 stated that ‘Family disputes that are resolved through mediation are cheaper, quicker and, according to academic research, less acrimonious than those that are settled through the courts.’ [33] For practical and financial reasons mediation would be beneficial to the parties involved. Moreover, the 2007 report stated that ‘Mediated cases are quicker to resolve, taking on average 110 days, compared with 435 days for non-mediated cases’. [34] The fact that mediated cases are resolved a lot quicker then those cases which are not, means that the child is disrupted for a shorter length of time, which is better for the overall wellbeing of the child. This also means that the parties would incur less financial loses which may help in the advancement of appeasement between the parties.

One may argue that family matters are better resolved within the family as the court’s role may be viewed as being too intrusive. The parties involved may regard judges as being too interfering and limited in their knowledge of the situation as a whole. The language used in describing the court’s role in child disputes illustrates this, for example as stated by Parkinson ‘reducing the court’s intrusion to the minimum’. [35] The word ‘intrusion’ invokes hostile feelings amongst the parties involved as the court is seen as being interfering in private family affairs.

In extreme circumstances, such as child abuse or domestic violence cases compulsory mediation would fail as forcing parties to negotiate under sensitive circumstances would be extremely unreasonable. However, the alternative of having a judge in court settle the child contact dispute would be not better than mediation. ‘Research has also identified that where child protection or family violence issues are raised in dispute resolution, then these concerns have often been ignored, minimised, or discounted. The marginalisation of allegations has been reported for both community- and court-based dispute resolution processes.’ [36] This creates a situation where neither of the options of having a judge in court or compulsory mediation would solve the child contact dispute. Furthermore, in situations where it may be difficult for people to negotiate due to alcohol or drug abuse or psychiatric illness it is arguable that there should be a different procedure initiated in order to resolve the dispute that is specifically catered for those with health problems.

In conclusion, child contact disputes are better resolved by compulsory mediation as oppose to being solved by a judge in court. This is because there are too many problems associated with child contact disputes that are resolved by a judge in court, and there is also the risk that the situation could escalate for the worse. Compulsory mediation is better solution as it means that there is minimal disruption for the child, and also offers a fairer outcome for the parents involved. Mediation is most suitable when all the parties involved genuinely want to resolve the dispute; however compulsory mediation ensures that the parties are at least encouraged to negotiate, as stated by the National Family and Parenting Institute, ‘Mediation should be the foremost mechanism for resolving contact disputes and supporting families in making appropriate arrangements’. [37]