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GAZETTE
APRIL 1987
Keep it out of Court
Mediation in Family Disputes
Af ter thirty years of practice as a solicitor, I recently made
a career change to wo rk primarily as a Family Med i a tor.
A friend and colleague (solicitor, not mediator) quizzing me
recently about my decision, remarked that whi le he liked
wha t he had heard about medi at ion, he did not really under-
stand how it worked, nor how solicitors and mediators should
co-operate in Family Law matters. He believed other solicitors
might be in the same position and suggested that I was as
we ll qualified as anyone, and perhaps better than most, to
explain medi at ion to lawyers.
This article is a response to his suggestion.
I can best explain mediation - at
least as I practise it - by quoting
from two documents. One is an in-
troduction, explaining the process
of mediation, which I
sometimes
send to couples who contact me,
but are not sure if mediation is
what they want, and which I
always
give to a couple who have
started mediation, at the end of our
first session.
The second is a paragraph that
I include, as standard, in any Note
of Agreement I prepare at the con-
clusion of a successful mediation.
First, the introduction, which starts
as follows:-
Introduction to Family
Med i a t i on
"This introductory note is in-
tended for couples who have
started to negotiate the terms of
their separation or who are
thinking about doing so. If you
are reading this note, you are
probably at a very painful and
difficult stage in your life. Let me
start, then, w i th
some
encouragement.
"Now, when you are at a point
in your marriage when either you
or your spouse badly wants to
leave it, is likely to be the worst
time. From here on, it has been
the experience of many people
in your situation that things are
unlikely to get worse, and may
start to improve.
"Next, although you may feel
uniquely wretched, many other
people have been in the same
mess, and have got over it, there
are other people now facing the
same problem, and there will be
many more.
"Finally, the fact that you are
reading this now suggests that
you are facing the problem, that
is, taking the first step towards
solving it.
by
M I C H A E L W I L L I A MS
Family Meditator
What is Family Mediation?
" A couple may expect to
organise their separation better
if they work it out together,
rather than through the legal
process which, almost unavoid-
ably, tends to escalate conflict
and lead to a confrontation in
which one party or the other will
emerge as loser. However, at a
turning point in their lives, when
emotions are very powerful, it
will be hard for them to sit down
together and talk rationally and
sensibly about their futures and
their children's futures.
" A couple contemplating par-
ting may ask a third party to help
them in their discussions and,
among other things, try to keep
the peace between them so that
they can talk calmly and ration-
ally. The third party may be a
wise friend, in whom they both
have confidence, a trusted
adviser, or somebody else. He
or she will be acting as a
mediator, whether trained for
that work or not.
"Some people believe that the
work of a mediator will be best
done by a man or woman who
is trained for it, and has built up
experience and know-how by
working at it daily.
"Most people who have been
through the process of media-
tion have said that the result
was better for them than if they
had left it in their lawyers'
hands. For others, mediation
hasn't worked, though most of
these have thought they got
something from it, and very few
who have tried it have felt that
it was a complete waste of time.
Who is Family Med i a t i on
for?
"Mediation is mostly used by
couples who have agreed to
part. A couple may also be
helped by mediation if they have
difficulties in their relationship,
and see separation as a possible
solution. It is not necessary that
they should both want to
separate; often one does, and
the other either doesn't want to
or is doubtful.
"Consulting a mediator does not
mean making an irrevocable
decision to part, but a mediator
should help a couple to focus
their minds on whether to live
together or apart.
"Mediation may also be helpful
to a couple who plan to live
apart for a while, but don't
necessarily intend to separate
permanently."
At this stage, before going on to
read the "Ground Rules" for
mediation, my clients, and pro-
spective clients, get a strongly
worded (and underlined) warning
as follows:-
" It is much harder work to
negotiate your own agreement,
with or without help, than to
leave it to lawyers or others to
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