‘Mr v Mrs: call the mediator’: lessons in how not to mediate

Kenneth Clarke reviews the BBC2 documentary series ‘Mr v Mrs: call the mediator’, which gave viewers ‘privileged access to the private world of family mediation’.

About the author
Kenneth Clarke FCILEx is a lawyer mediator with Laceys Mediation, Dorset. The views expressed in this article are the author’s personal views and opinions.

National Family Mediation (NFM) made the brave decision to expose its mediators to a fly-on-the-wall documentary series, which was broadcast in July 2016. An immediate problem was that the focus of the series was on the colourful lives and conflict of the participants rather than on the work of the mediators: good for television drama, bad for the world of mediation.

To compound the sense that this was a lost opportunity to showcase the positive benefits of mediation, all nine cases put under the intrusive glare of the television camera were an object (or abject) lesson in how not to mediate.

An opportunity lost

According to NFM’s website, the programme was supposed to give ‘insight into how family mediation can settle disputes’.¹ However, by the end of this series, viewers must have been left thinking that mediation does not work. As a fulltime lawyer mediator who actually does achieve full or partial resolution in most of my cases, I was left disappointed, angry and lamenting a lost opportunity to show the transformative power of mediation in the often toxic world of family disputes. The level of incompetence displayed in the way the nine cases were approached and handled was, in this mediator’s opinion, inexcusable.

This was the last thing the world of mediation needed at a time when there are dwindling numbers attending mediation assessment meetings (MIAMs). Legal-based professional bodies are already sharpening their knives, ready to attack what they perceive to be the failure of mediation and, inevitably, suggesting that the government's strategy is not working. The number of MIAMs was down by 14% from January to March 2016 compared with the same period in 2015.²  Fewer people are accessing mediation to resolve matters out of court, contrary to the government's stated objectives, a statistic seized on forcibly by Resolution recently: ‘We believe everyone should have access to justice, and remain concerned that the [Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012] continues to put this at risk for thousands of separating couples.’³ 

 ... the focus of the series was on the … lives and conflict of the participants rather than on the work of the mediators

Without wanting to stray from the topic at hand, what these statistics highlight is not necessarily a failure of mediation, but a failure by the system to make mediation more accessible and attractive; and a failure of legislators and professional organisations to provide sufficient information about what the mediation process actually entails. For example, many people are still oblivious to the fact that legal aid is available for mediation. Section 5(3) of the Child Arrangements Programme (CAP) 2014 (the CAP is contained in Practice Direction 12(B) - Child Arrangements Programme) makes it mandatory for a proposed applicant to attend a MIAM. However, the prospective respondent is only ‘expected to attend a MIAM’.

In many cases, the prospective respondent does not even engage with the process when requested to do so. The failure to make it mandatory for both parties to attend a MIAM is a failure on the legislators’ part. In my experience, many respondents ignore a request to attend a MIAM because as I have often heard: ‘I was told I don’t have to.’

Mediation works

Empirical evidence from around the world bears testimony to the fact that the earlier parties are referred to mediation, the more likely a successful outcome can be achieved. As a result, there is less reactive devaluation to the other side’s position as the parties are entrenched for a shorter period; there are fewer polarised positions (which are caused by the litigious route); and, in children cases, quicker outcomes. The benefits are obvious.

I have been a full-time lawyer mediator for 11 years (ie, long before the implementation of the LASPO Act), and handle my fair share of high-con flict cases. Given the opportunity to explain the mediation process properly to both parties, the majority of attendees are prepared to give mediation a try and most reap benefits - and often lasting benefits - from the process.

Make it mandatory for both parties to attend a MIAM. Many respondents do not understand their dispute resolution options, and surely they should have an equal right to receive the same information as potential applicants? Furthermore, if a MIAM is conducted properly it is a perfect opportunity to learn about the often deep-seated underlying issues that are driving the conflict, enabling the mediator to get to know the parties, which in turn allows that mediator to manage the process better once mediation starts.

The series reviewed

Looking at the nine cases on ‘Mr v Mrs: call the mediator’, I wondered whether the mediators actually conducted the MIAMs as they appeared to lack the requisite knowledge, empathy or understanding of what was making their clients ‘tick’. Dissecting the nine cases, it seemed from the uncomfortable viewpoint of my armchair that, in general, the mediators failed to grasp the dynamics which were driving the below-the-surface tensions and conflict or to set boundaries about respectful behaviour. For example, by making sure that the parties took turns speaking and not dwelling on the past.

Lack of ground rules

Unfortunately, no ground rules appeared to have been set by the mediators by the commencement of the first session. Most worryingly, the sessions seemed to be another opportunity for the parties to continue their bickering unfettered: there was no focus on resolution of the issues. The mediators gamely plodded on with an active-listening approach, which all too quickly failed. Shuttle should have been considered, particularly in some of the children cases, emotions were running high. I wondered if any of the mediators have read Dudley Weeks’ The eight essential steps to conflict resolution: preserving relationships at work, at home and in the community, or Mark S Umbreit’s Mediating interpersonal conflicts : a pathway to peace? Both works highlight the effective use of caucusing before joint sessions.

Inadequate legal information

The legal information provided was either sparse or incorrect, particularly in the two financial cases. For example, why was there a debate in one of the cases about whether the husband should make full financial disclosure? More than once the husband said that, if the wife insisted on this disclosure, he would end the mediation.

The Code of Practice for Family Mediators: September 2016 states that mediators ‘must seek to ensure that the participants reach their decision upon sufficient information and knowledge’, and ‘must promote the participants’ equal understanding of such information before any final agreement is reached’ (para 6.12 and para 6.13 respectively).⁴  This is basic mediator training, irrespective of the mediator’s professional background. The mediator should have made it clear that full disclosure is a prerequisite whether in mediation or in court, particularly as, at the end of the mediation process, the parties’ solicitors have to give legal advice on whether the final agreement contained in the mediation summary is fair and reasonable. They cannot do so without having full disclosure of all relevant documents from both parties. Furthermore, the information about the basis for the value of the family home was also incorrect.

In the other financial case, the mediator started off by giving correct legal information that ‘50/50’ is the starting point for division of assets in a long marriage; however, they failed to reiterate this later in the mediation when the husband suggested that the family home should be transferred to the children. Failing to reality test a party’s position digs a hole for the mediator and allows the unrealistic expectations of one party to stifle the negotiation process.

Sadly, despite the best efforts of the mediators in these two cases, they present a strong argument for financial mediations to be carried out only by competent lawyer mediators providing, of course, that the lawyer mediator possesses the other skills a mediator requires to deal with all aspects fuelling the impasse and conflict.

Lack of intervention

One of the children's cases showed a high level of dysfunctional communication between the parties. The mediator should have intervened and suggested shuttle which, as I have already pointed out, can be a very effective way to manage the process and keep people on track, therefore enabling the mediator to reduce tension and create breathing space for a more rational dialogue to evolve.

Where was the basic mediator training that should have been brought into play to reduce impasse and slow the conflict? Where was the best-case /worse-case scenario? Where was the reframing of explosive statements into individual needs and concerns, which would have enabled other options to be explored and mutual interests satisfied?

An appropriate mediation model

The mediation model used by the mediators seemed to be a passive, facilitative approach: listen, give information and, ultimately, let the parties decide. This is a perfect model when the parties have a semblance of co-operation, but the cases in this documentary series displayed a high level of dysfunctional interaction between the parties, and were crying out for a more holistic approach. And why continue subsequent mediation sessions round the table when one or both parties have walked out of the previous session without the mediator having resolved what caused the walkout?

A combination of evaluative, narrative and therapeutic mediation models could - and should - have been used. Mediators must be both proactive and reactive to the needs of individual clients. In high-con flict cases, mediators must become active participants and intervene, where necessary, in order effectively to manage the process and keep the parties on track and focused on resolving the issues. Otherwise you end up with what happened in these cases, ie, entrenched positional bargaining, with the parties attacking each other rather than attacking the problem, as opposed to principled bargaining, which is more likely to lead to a win-win scenario.

A competent mediator, with the necessary legal knowledge and using a diverse range of mediation skills from different models, would have at least provided the parties with the necessary tools required to help them negotiate more effectively. This would have enhanced the chances of a successful mediation outcome, and the mediators would probably have managed the process more successfully.

In summary

Huge strides have been made in this country to put mediation at the forefront of the legal system in terms of family dispute resolution. Mediation is more efficient, requires limited time and expense to reach agreement, and is a process that - at its interface - is more sensitive to the parties’ needs.

Outcomes are more lasting and durable, and the majority of participants report satisfaction and consider mediation to be a fair and empowering process. This is true even of high-con flict cases where the skills of the mediator are instrumental in both deescalating the conflict, and helping embittered parties change the emphasis of their dispute from conflict to co-operation.

Regrettably, this documentary series failed to show any of the positive features and benefits of a constructive mediation process. In the majority of cases, where both parties have attended the MIAM and then go on to mediate, mediation is a versatile and effective process that time and again produces lasting successful outcomes.