Mediation,financial remedies,information provision and legal advice: the post-LASPO conundrum*

The near-total collapse in numbers of solicitors providing legal advice and assistance to publicly-funded clients attempting to settle private family law issues through mediation since the legal aid reforms implemented in 2013 raises important questions about how, if at all, clients in mediation can receive legal information and advice other than from lawyers in financial cases following divorce. This article explores, in a preliminary way, this aspect of mediation practice, drawing on small-scale qualitative data from a study conducted shortly prior to the legal aid reforms concerning the settlement of such cases. It explores how mediators then approached their (permissible) function of providing clients with legal information and how they dealt with cases where they felt that the proposed outcome was particularly unfair to one party or unlikely to be endorsed by a court, and asks how mediation practice – and legal practice – may come under pressure to change in this brave new world.     

Co-optation,competition and resistance: mediation and divorce professionals in Israel

This paper investigates the development of family mediation in Israel within the theoretical framework of the competition between professions (Abbott, 1988; Shamir, 1993), and the co-optation model of Coy and Hedeen (2005). It describes the formal institutionalization of family mediation in Israel and examines the claims made by lawyers, therapeutic mediators, and lawyer-mediators about the nature and boundaries of their professional enterprise and their goals and practices. Based on 254 questionnaires, semi-structured taped interviews and professional documents, our study found differences in the way the professionals construct the nature of the competition over mediation. While lawyers describe mediators as invading their realm of divorce practice, therapeutic professionals view mediation as a new field of knowledge which they are claiming as their own, in competition with legal professionals. Moreover, although elements of Coy and Hedeen's (2005) co-optation model were useful in describing the developing relationship between the divorce professionals, we found different strategies of resistance at each stage of the process.     

REPRESENTATION DISPARITIES AND IMPARTIALITY: AN EMPIRICAL ANALYSIS OF PARTY PERCEPTION OF FEAR,PREPARATION, AND SATISFACTION IN DIVORCE MEDIATION WHEN ONLY ONE PARTY HAS COUNSEL

While other authors have regarded both the presence and the absence of attorneys in family law mediation as cause for concern, little attention has been given to the questions raised when one party is represented and the other is pro se. This article presents data on mediating parties' premediation concerns, fears, and feelings of preparedness, as well as their postmediation satisfaction with the mediation process. The mediating parties are grouped based on each couple's representation status, for example, both represented by attorneys, both pro se, or one attorney‐represented party and one pro se party (mixed representation cases). The data show that mixed representation cases are the most likely to report concern, fear, and unpreparedness. Mixed‐representation cases also reported the lowest levels of satisfaction after the mediation. Some implications for mediation practice are discussed, as are suggestions for future research.     

Does Level of Intimate Partner Violence and Abuse Predict the Content of Family Mediation Agreements?

This study investigated whether reported levels of intimate partner violence (IPV) and/or abuse (IPV/A) victimization are related to reaching agreement and to the content of mediation agreements of parties seeking to resolve family‐ and child‐related issues. Whether or not parties reached agreement was analyzed for 105 cases at a law school mediation clinic. Agreement content was coded for the 71 cases that reached agreement. Levels of IPV and IPV/A were determined separately for males and females, using a standardized measure. Regression models were utilized to examine reports of IPV or IPV/A as predictors. Results indicated that mediation may help families with a reported history of IPV and IPV/A address a variety of concerns; levels of partner violence/abuse predicted numerous issues in mediation agreements, including arrangements regarding legal custody, parenting time, holidays, child exchanges, interparental communication, safety restrictions, counseling referrals, child support, financial arrangements, and other miscellaneous topics (e.g., relocation). However, some findings were consistent with concerns raised about the use of mediation with parties reporting IPV and IPV/A; for example, increasing levels of male‐perpetrated IPV/A predicted increased likelihood of making an agreement to share legal custody. Further research is needed to resolve the longstanding debate of whether divorce mediation is an effective and safe process for parties demonstrating IPV/A.

Key Points for the Family Court Community
• This study adds to the debate of whether divorce mediation is an effective and safe process for parties demonstrating IPV/A.
• It examines whether reported levels of IPV and IPV/A victimization are related to reaching agreement and to the content of mediation agreements of parties seeking to resolve family‐ and child‐related issues.
• Results provide some evidence that mediation may help families with a reported history of IPV and IPV/A address a variety of concerns.
• However, some findings are consistent with concerns raised about the use of mediation with parties reporting IPV and IPV/A.
• Findings have implications for the practice of family mediation with parties reporting a history of IPV or IPV/A.

     

Disputed child custody: strategies and issues in mediation

Disputed child custody is a significant life stressor for both adults and children. Recent efforts have been made to develop a model for family mediation and subsequent clinical strategies that can attempt to address the stressors involved in divorce and perhaps resolve, through mediation, the posttrauma stress experienced by both spouses and children. Reviewed is the literature on the impact of separation and divorce on families and the use of family mediation to resolve disputes. It further addresses psychologic factors involved in the mediation process and the possible effects of mediation on divorce. An established family mediation model for treatment is presented in detail, as are clinical issues often addressed in the family mediation process. Issues and import for clinical application and research are offered.     

Hearing parties' voices in Coordinated Family Dispute Resolution (CFDR): An Australian pilot of a family mediation model designed for matters involving a history of domestic violence

This paper discusses the Coordinated Family Dispute Resolution (family mediation) process piloted in Australia in 2010–2012. This process was evaluated by the Australian Institute of Family Studies as being ‘at the cutting edge of family law practice’ because it involves the conscious application of mediation where there has been a history of family violence, in a clinically collaborative multidisciplinary and multi-agency setting. The Australian government's failure to invest resources in the ongoing funding of this model jeopardises the safety and efficacy of family dispute resolution practice in family violence contexts, and compromises the hearing of the voices of family violence victims and their children.     

Book Review: How Mediation Works: Theory,Research, and Practice by Stephen B. Goldberg,Jeanne M. Brett,Beatrice Blohorn‐Brenneur,With Nancy H. Rogers

This is a book review of How Mediation Works: Theory, Research, and Practice by Stephen B. Goldberg, Jeanne M. Brett, Beatrice Blohorn‐Brenneur, with Nancy H. Rogers. How Mediation Works is intended for a wide range of audiences: practicing mediators; aspiring mediators; those who may refer cases to mediation; participants in mediation, including parties and attorneys; managers who facilitate disputes; and those interested in mediation without a specific plan to engage in the practice (who the authors call “mediation learners”). The book is a well‐written, thoughtful, easy‐to‐read, organized, and concise overview of mediation practice. The book is divided into six chapters: (1) conflicts, disputes, and their resolution; (2) dispute resolution processes; (3) the roles of the mediator and the disputing parties at each step of the mediation process; (4) dealing with difficulties; (5) mediation and the law; and (6) suggestions for aspiring mediators. Though not an authority for family law mediation, the book provides many insightful observations and suggestions that would be instructive and helpful to any mediator or individual with an interest in mediation.     

ATTORNEYS' OPINIONS REGARDING CHILD CUSTODY MEDIATION AND ASSESSMENT SERVICES

Family attorneys (N = 161) completed a questionnaire about mediation and assessment of child custody issues. Comparisons by gender, years of family law practice, and status as a mediator revealed more similarities than differences among attorneys. There were gender differences in the strength of conviction of the importance of attending to abuse issues in mediation and assessment, with female attorneys holding stronger views than did their male counterparts. There were few differences among the opinions of lawyers based on their years of experience or their training in mediation, although, compared to nonmediators, mediators rated the positive effects of mediation more highly.     

Expressing Conflict, Neutralizing Blame, and Making Concessions in Small‐Claims Mediation

This research examines the link between the way small‐claims mediation participants express their conflicts and their willingness to engage in concession‐making. Observations of seventy‐seven mediation participants suggest that a significant factor in this relationship is the way participants manage the issue of blame. The research identifies three categories of mediants: individuals named in a civil suit who represent themselves; agents, usually lawyers, who represent the interests of other parties in a civil suit; and business owners or managers who represent the interests of their establishments. The study depicts some of the differences in the way these participants describe their conflicts. In particular, the research suggests that the manner in which mediation participants handle the issue of blame – by either justifying, excusing, or denying it – constrains their willingness to engage in concession‐making, a fundamental aspect of the mediation process. I discuss implications for future research and for developing strategies that might improve the effectiveness of mediation for some participants.     

TRAINING,SKILLS, AND PRACTICES OF PARENTING COORDINATORS: FLORIDA STATEWIDE STUDY

This report details findings from the nation's first statewide study on parenting coordination. A survey was presented to all known practicing parenting coordinators (PCs) in Florida (N = 207), with 67 (32%) responding. Data concerning PC demographics, how PCs do their work, and how they perceive their clients at different stages of the parenting coordination process suggest substantial similarity between mental health and family law professionals in almost every realm of questioning. Study limitations, implications for further research, and practice considerations are discussed.     

One of the family: Domestic service in early modern Japan

This study investigates the effect of domestic service upon social practice and asks if domestic service led to self-affirmation and individualistic behavior in early modern Japan. It begins by describing various employees classified as domestic servants. Next the role of the servant as a member of the employer's family shows fluid kinship relations that resulted in changes in the family system and family practice. Contemporary theater is used to address some of the conflicting issues that these changes offered as challenges to patriarchal authority and how society reacted to these changes.     

Safety,Satisfaction, and Settlement in Domestic Relations Mediations: New Findings

Researchers and mediators have long been concerned about coercion, intimidation, and safety threats that could occur in mediation for cases where previous violence between the parties has occurred. Most of the research focuses on screening tools to identify parties at risk. When parties screen positive for intimate partner violence (IPV), some proceed to mediation and some do not, depending on the policies of individual mediation programs. But this misses a step: Some cases may benefit from mediation while others won't, but how can we predict whether mediation will be useful and safe in specific instances? This study uses survey data obtained from parties in domestic relations mediations to examine issues of safety, satisfaction, and settlement in the presence of various IPV behaviors.     

GENDER ISSUES IN FAMILY LAW

Family mediation has been the target of criticism from feminists, the legal profession, and mental health professionals. Although this article will primarily address the concerns of feminists, it will, to a limited extent, address some of the concerns put forth by the other groups because of the similarities in their perspectives. Many of the concerns and issues expressed by feminists are valid on one hand, yet contradictory on the other. By exploring the gains made by women and how these gains were incorporated in the Ontario Family Law Act, the contradictions inherent in their arguments will be revisited and discussed in relation to a feminist-informed mediation process. This article will explore seven aspects of the feminist critique of family mediation: protection of women and children's rights, spousal and child support, equal distribution of marital property, negotiations, empowerment, custody, and spousal abuse. Many of these issues are intertwined and therefore will occasionally be discussed in relation to other issues.     

SPOUSAL CONSENSUS ON THE DIVORCE DECISION AND MEDIATION OUTCOME

This study examined the relationship between spousal consensus on the decision to divorce and mediation outcome. Based largely on clinical experience and deductive reasoning, the conceptual literature has held that low consensus is negatively related to success in divorce mediation. To empirically explore this relationship, 72 families beginning court-ordered divorce mediation were asked whether they agreed that divorce was the best way out of their problems. Statistical analysis of their responses as they related to the outcome of mediation did not support the conceptual literature. No significant relationship was found between spousal consensus on the divorce decision and mediation outcome, a finding which agrees with the limited empirical research. This indicated that mediation is more tolerant of spousal nonconsensus than had been assumed in the divorce mediation literature.     

A COMMENT ON WILLIAM J. HOWE AND HUGH MCISAAC'S ARTICLE “FINDING THE BALANCE” PUBLISHED IN THE JANUARY 2008 ISSUE OF FAMILY COURT REVIEW

This article is a response to an article written by William Howe and Hugh McIsaac that questions their recommendations that court‐based mediation not be used when certain types of persons appear in court. We assert that it will be very difficult for the court to identify these people. Further, we argue that mediation practice has advanced so far that even these persons (those with serious issues of domestic violence, substance abuse, and mental health) should be given an opportunity to participate in mediation before being referred to the adversarial court process.     

MEDIATION AND THE PROCESS OF FAMILY LAW REFORM

The family law system needs fixing. The real question is how to go about fixing it. The concept of mediation and its process should be vital in the rethinking and restructuring of the system. This article discusses how mediation can be used in policy-making to get all the stakeholders in the family law system to creatively and non-judgmentally work toward reform. The author contends that increased legal access and speedy low-cost dispute resolution should be at the top of the reform agenda. Courts and professional offices are valued for their consumer-friendliness, stressing nonadversarial settings and cleint education. Unbundling is urged to be not only accepted but also promoted as a practice to meet the legal needs of families. The article concludes with the argument that effective reform should incorporate the principles of mediation, and the reform process should take advantage of models of consumer friendliness from both the public and private sectors .     

Shuttle and Online Mediation: A Review of Available Research and Implications for Separating Couples Reporting Intimate Partner Violence or Abuse

Whether family law cases with a history of severe intimate partner violence and/or abuse (IPV/A cases) should have the option of settling family‐related issues using mediation is the subject of significant debate. Recommendations for potentially safer ways to mediate IPV/A cases have been developed, including shuttle and online mediation. Given the current lack of research on these forms of mediation with IPV/A cases, we review the research on shuttle and online mediation in other contexts and theorize how the findings might apply to IPV/A cases. We argue that, although online and shuttle mediation may benefit IPV/A cases, aspects of these procedures require special considerations.     

Apology in victim–offender mediation

Victim–offender mediation practices bring conflicting parties together so they can engage in a two-way dialogue and ultimately negotiate a mutually agreeable resolution. The fact that apology may be a motivator for participating in the mediation process and that it is often a common outcome of mediation suggests that research on mediation ought to more carefully explore the nature of the apologies that are offered. The present study provides a qualitative exploration of the prevalence and nature of the apologies offered by offenders to their victims during face-to-face mediations. Fifty-nine mediation agreements recorded by the longest running mediation scheme in the UK were analysed. It was found that 50.8% of agreements contained mention of the perpetrator saying ‘I’m sorry’ or offering a partial apology (i.e. acknowledging harm and/or promising forbearance). Full apologies were absent in the mediation agreements. Agreements did not make explicit mention of the offender admitting responsibility or expressing remorse or regret. Finally, although the mediation agreements did not make any explicit mention of offenders offering reparation, they did record efforts at providing solutions to the conflict.     

Divorce Israeli Style: Professional Perceptions of Gender and Power in Mediated and Lawyer-Negotiated Divorces

This study examines how the power of women is constructed by divorce professionals in a divorce process that is governed by rabbinical family law, the egalitarian ideology of the recently established family courts, and the growing use of mediation in divorce disputes. It is based on 254 questionnaires and 57 interviews with lawyers, mediators, and lawyer-mediators. We found that except for a minority of women lawyers, practitioners claimed that women were not disadvantaged by family law, and that mediation does not adversely affect weaker parties. However, their reactions to hypothetical situations indicated that rabbinical law does matter for women's bargaining power, and for lawyers' recommendations for mediation. This study reveals the complexities of the social construction of gender and power in divorce negotiations and the role of women professionals in empowering divorcing women.