S3 Episode 5: Re-thinking Mediation
About this episode
Hosted by: Anita Mehta and Simon Blain
Guests: Jo O’Sullivan, Dr Jon Symonds and Rachel Chisholm
This month we take an in-depth look at mediation with Jo O’Sullivan (O’Sullivan Family Law), Dr Jon Symonds (University of Bristol) and Rachel Chisholm (The Mediation Space, 4PB).In November 2022, Dr Symonds with his colleagues Emma Dermott, Emma Hitchings, Eleanor Staples, and Heather Ottaway from Bristol University published research with the Nuffield Family Justice Observatory, called Separating families: Experiences of separation and support:
Jon tells us about this research and how they looked at 42 people’s experiences of separation. Eight participants in the study had been to mediation and told the researchers about their experiences. Some participants said they had appreciated the information and signposting, but another said they had found it frustrating because the mediator had not told their ex-partner they were being unrealistic (and when the case did go to Court, the Court also found those requests unrealistic) and another had found it distressing because the mediator had been unable to manage the power imbalance. In this study, all of the participants had tried to avoid going to Court, and had only used it as a last resort.
We all agree that mediation is the gold standard for resolving issues about how to care for children. We go on to talk about whether mediation works when there is a huge power imbalance between the parties, and whether there has been sufficient screening for domestic abuse in the past. Jo talks about the importance of having an initial appointment with each party separately, and whether that should be a mandatory part of mediation. We discuss whether cases with allegations of domestic abuse should be automatically exempt from mediation. Rachel reminds us of the importance of ‘do not harm’.
Jo shares some insights from her book ‘(Almost) anything but the family court’ https://www.familyseparation.shop/
All three of our guests talk about how the timing of mediation is key – both in terms of where the parties are in terms of their separation, and where they are in terms of proceedings. Whilst acknowledging there can be difficulty with identifying when parties are emotionally ready, and what to do if they are ready at different time.
We conclude with some thoughts for the future, including whether Court ordered mediation could work, the ability to have Early Neutral Evaluations provided to parties for mediation, and whether some of the rules and regulations around mediation should be lifted.