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FAMILY MEDIATION

FAMILY MEDIATION. June Venters. What is Mediation?. “Alternative Dispute Resolution”. AIM OF Mediation?. You’re not alright. You’re not alright. I’m not alright. I’m alright. I’m not alright. I’m alright. You’re alright. You’re alright. QUALIFICATIONS & APPOINTMENT OF MEDIATORS.

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FAMILY MEDIATION

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  1. FAMILYMEDIATION June Venters

  2. What is Mediation? • “Alternative Dispute Resolution”

  3. AIM OF Mediation? You’re not alright You’re not alright I’m not alright I’m alright I’m not alright I’m alright You’re alright You’re alright

  4. QUALIFICATIONS & APPOINTMENT OF MEDIATORS Qualifications and appointment of mediators [See Document 1 - Training]

  5. WHAT ARE THE PRINCIPLES OF MEDIATION? • Voluntary participation • NB Legal Services Commission’s referral requirement before issuing Section 8 Children Act applications

  6. WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED) • Impartiality of the mediator • NB discussions regarding referrals within the same solicitors practice • Respect for individuals in mediation

  7. WHAT ARE THE PRINCIPLES OF MEDIATION? (CONTINUED) Confidentiality Decision-making rests with the Participants

  8. MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION • Informed discussions and decision-making [disclosure] • Facilitation of communication, without advice • Confidentiality and legal privilege NB exception for confidentiality

  9. MATTERS ARISING FROM THE PRINCIPLES OF MEDIATION (CONTINUED) NB exceptions to legal privilege (waiver of legal privilege by both parties) • Legal privilege attaches to the parties not the mediator. Accordingly if parties agree to waive privilege and the mediator declines it is for the Court to decide whether the mediator should be called NB Rothwell v Rothwell [2008] EWCA Civ1600 [See Document 2]

  10. Voluntary Participation

  11. MEDIATION COURSES [See Document 3 - Example of a Training Provider’s Course details]

  12. Impartiality of the Mediator

  13. Respect for Individuals in Mediation WE RESPECT I RESPECT

  14. INFORMED Discussions and Decision/Making [disclosure] FOR DISCLOSURE

  15. Facilitation of Communications, without advice

  16. Confidentiality and Legal Privilege

  17. HOW DOES MEDIATION WORK? WHO CONTROLS WHAT: • Mediator in control of the process • Participants in control of the agenda

  18. How Does Mediation Work? (CONTINUED) • 5 STAGES • Establishing the arena • Clarifying the Issues • Exploring the Issues • Developing Options • Securing Agreement

  19. How Does Mediation Work? (CONTINUED) • MEDIATION DOCUMENTATION • Willingness Test • Intake/Information Meeting • Agreement to Mediate • Session Sheet • Memorandum of Understanding • Open Financial Statement

  20. How Does Mediation Work? (continued) • Legal standing • NB Rothwell v Rothwell [2008] • Further guidance required

  21. How Does Mediation Work? (continued) Differences in roles and responsibility when comparing legal advisers and family mediators

  22. How Does Mediation Work? (continued) Legal Advisers Family Mediators Family Mediators have a responsibility to help both participants equally and in impartially • Legal Advisers have a duty towards their own client

  23. Legal Advisers Family Mediators How Does Mediation Work? (continued) Legal Advisers often start by taking the history from their clients Mediators help participants to define issues and agree an agenda without taking a history

  24. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators focus on participants concerns first and foremost: Legal context is secondary • Legal Advisers advise clients on their legal position and framework of the law and procedure

  25. Legal Advisers Family Mediators How Does Mediation Work? (continued) Legal Advisers collect and exchange financial information in a formal discovery process Mediators share and clarify financial information from both parties with both parties together

  26. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators tend to use non-legal language • Legal Advisers tend to use legal terminology

  27. How Does Mediation Work? (continued) Legal Advisers Family Mediators Legal Advisers may be obliged to address clients grievances about past incidents or behaviour Mediators focus on the present and future as far as possible

  28. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators acknowledge and mutualise both parties’ feelings, can manage their anger and help them move forward • Legal Advisers give clients emotional support and may Counsel them in an informal way

  29. How Does Mediation Work? (continued) Legal Advisers Family Mediators Legal Advisers draw from clients’ view of the children’s needs Mediators seek both parents’ views and concerns about their children; may involve children

  30. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators set out options without advising on the best option • Legal Advisers advise: • may recommend a particular course of action

  31. How Does Mediation Work? (continued) Legal Advisers Family Mediators Legal Advisers in round-table meetings with their clients, legal advisers tend to take the lead Mediators encourage dialogue between participants, intervening when necessary

  32. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators help participants to keep control of their affairs as far as possible • Legal Advisers write letters on their clients’ behalf; may take over management of the case

  33. How Does Mediation Work? (continued) Legal Advisers Family Mediators Legal Advisers draft applications to the Court Mediators do not draft Court applications

  34. How Does Mediation Work? (continued) Legal Advisers Family Mediators Mediators may co-mediate; draw from the knowledge and skills of other disciplines • Legal Advisers are unlikely to cause – work “unless they are active as collaborative lawyers”

  35. WHAT ARE THE TASKS AND SKILLS IN THE OPENING STAGES OF MEDIATION? • Creating a forum and positive environment • Explaining, informing • Questioning • Listening • Acknowledging • Clarifying • Managing conflict without suppressing it

  36. What are the Tasks and Skills in the Opening Stages of Mediation? (CONTINUED) • Re-framing and mutualising • Prioritising • Balancing • Building trusts • Management of case • Summarising

  37. COSTS • Legal Aid • Providing disposable income does not exceed £733.00 per month and capital does not exceed £8,000 Legal Aid will be available

  38. COSTS (CONTINUED) • Legal Aid • NB If someone is in receipt of income support, income based job seekers allowance, income based employment and support allowance or guarantee credit they will be passported [See Document 5 – Community Legal Service Keycard for calculation of Public Funding]

  39. COSTS (CONTINUED) • Privately funded • Where Legal Aid is not available fees will be on a privately funded basis according to income

  40. Timeframe • This depends on a number of factors: • Children only Mediations • These tend to last an average of 3-5 sessions

  41. TIMEFRAME (CONTINUED) • This depends on a number of factors: • All issues in Mediation • These involve children and finances and tend to last between 5-7 sessions • Finance Mediations • These tend to last 3-5 sessions

  42. Timeframe (CONTINUED) • There is no hard and fast rule and much will depend on the individual requirements and complexities of the issues being discussed • Each individual session will last approximately 1.5 hours

  43. CHILD MEDIATION[See Document 6] • In Mediations involving children parents often wish to involve their children in the process • Additional qualifications are required on the part of the mediator • Strict procedures need to be observed • Confidentiality extends to children • Child protection policy

  44. CHILD MEDIATION (CONTINUED)

  45. MEDIATION AND DOMESTIC VIOLENCE[See Document 7] • Can they interrelate? • It is possible for Mediation and Domestic Violence to inter-relate subject to safeguard [screening] • Timing may vary

  46. Mediation and Domestic Violence (continued) • Nature of co-mediation may vary [co-mediation; shuttle, Caucus] • Signposting – anger management • Domestic violence remedies whether through the criminal or civil Courts are a short term “fix” – ongoing issues such as finance and children in relationship breakdowns still need to be resolved

  47. MEDIATION National Family Mediation Helpline

  48. NATIONAL FAMILY MEDIATION HELPLINE[See Document 8 & website http://www.familymediationhelpline.co.uk]

  49. THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED) Set up on 3.4.09 in conjunction with the Civil Mediation Council HMCS set up The National Mediation Helpline Provides civil court users in England and Wales with information and advice on mediation

  50. THE NATIONAL FAMILY MEDIATION HELPLINE: (CONTINUED) If requested, the Helpline can put callers in contact with an accredited mediation provider who can provide low cost mediations. The Helpline can be accessed by phoning 0845 603 0809 (local rate) between 8.30am and 6.00pm.

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