Category Archives: Divorce

Improving handovers for children of separated parents

Article, Blog, Divorce, Family mediation

By Ashley Palmer and Leigh Moriaty, the Handover Book

In 2017 we published the UK’s first ever Handover Book which is a communication tool for separated parents. The book was conceived in the context of our relationship with many separated families who were searching for a resource that enabled them to reduce parental conflict, improve communication and create a more robust co-parenting relationship post separation.

This article aims to provide an explanation of why the book was created in the context of our many years’ experience of working therapeutically with children and families.

Since it’s delivery to the world of family law, the book has been gaining momentum both in the UK and Australia. It is fast being recognised as an invaluable tool in the context of Family Mediation, Court ordered parenting programmes and across the field of Alternative Dispute Resolution.

In the UK, the Handover Book is now court ordered for separated parents involved in court proceedings and is recommended by Court Consultants in their Section 7 reports.

As a Systemic Family Psychotherapist, Mediator and consultant for Collaborative Law, I have for many years immersed myself in the world of working with families presenting with a myriad of difficulties and dilemmas in many contexts. My curiosity has grown over time in relation to how best to support clients through the transition of separation and divorce. How to assist parents with being able to navigate their own journeys of separating whilst centralizing the emotional and physical needs of their children.

Conflict is a normal and inevitable part of family life. However, the inability to resolve conflict and move forward in a constructive way can have a negative impact on parents and children’s psychological well-being both in the short term and over time. Wittgenstein (1958) suggests that if mediation is deemed a success then parties involved know how to ‘go on’.

Reflecting on my work with separated parent’s positions me to consider some of the common dilemmas presented in the context of my work.

Entrenched stories of conflict, blame and hostility towards one another. Winslade and Monk (2000) suggest that for those of us working with separated parents our goal is to contribute to building a story of a relationship that is incompatible with the continuing dominance of the conflict and that we need to open the space for people to make discursive shifts.

When this can be achieved, we create new future possibilities for enabling parents to be able to mentalize about their child’s emotional fragility and to consider what needs to be different in relation to facilitating a smooth transition between homes post-separation.

Whilst consulting with children in the context of this work, I have heard all too often a dominant narrative of experience which is punctuated by episodes in which a child feels painfully positioned between waring parents. A sense of divided loyalty, blame and a responsibility for passing and filtering information from one parent to another. In its extreme these children will resist contact with one parent and align themselves with the other because the turmoil is too great to bear. Sadly, the unresolved parental conflict will often lead to long and protracted court proceedings and the presentation of emotional difficulties for the child in the future.

Research over the last decade has provided deeper insight into not only the outcomes for children of exposure to destructive conflict but also how children are affected and why some children appear more vulnerable or resilient than others. Research has also focussed on how family relationship patterns are passed from one generation to the next. One explanation is that conflict between parents disturbs other relationships within the family such as between a parent and child. (Grych and Fincham, 2001). There is also evidence to suggest that a family environment marked by destructive conflict affects normal developmental processes, such as brain development, which in turn affect children’s emotional, behavioural and social development. Goozen et al, 2007)

An integral part of my work with separated parents is to support parents to understand the importance of their own emotional regulation in order that they hold in mind the positive effect that this will have on their child’s emotional development by increasing their child’s sense of security and belonging. In turn, this will enable them to accept and trust in the attachment relationship.

A child transitioning between both homes may experience a parent presenting as highly anxious before and after contact with the other parent because the parents are conflicted and distrustful of one another. This may be verbalized or covertly communicated through action. Often, in my experience children of highly conflicted separated parents are highly attuned to the subtle messages of concern that parents display.

When a child feels unable to talk about their experience of contact in either home this can also exacerbate parental anxiety. A vital component to children feeling able to have the emotional permission to have a close and loving relationship with both parents is their ability to express their feelings and emotions without fear of upsetting a parent or contributing to the already conflicted parental relationship. This process is often referred to as emotional literacy which is the ability to recognise, understand, manage and appropriately express emotions. Children who are able to do this are often more able to initiate a helpful response from others and develop strategies for coping and building resilience.

In my experience, it becomes essential for children of separated parents to be able to develop these skills. Sometimes as part of the therapeutic work this is about supporting and developing one or both parent’s ability to do this with their child. If a child is only able to achieve this with one parent they will feel the need to ‘hold it together’ for the duration of the contact with that parent but on returning to the other parent whereby they feel emotionally contained their presentation is often one of ‘emotional dysregulation’ which in turn raises that parents anxiety about their time in the care of the other parent.

Arising from our work with separated families, the issues of concern highlighted in this article are common, regardless of the context in which parents are engaging in a service to resolve issues arising from the separation. Whether that be mediation, collaborative law, parenting programmes or therapy. What appeared to be evident was that armed with a plethora of information about the need to develop a workable co-parenting relationship which centralized the needs of the children, parents were often unsure as to how to implement this approach.

The Handover Book creates the opportunity for children to see their parents working co-operatively and diminishes children feeling a sense of divided loyalty. Furthermore, it increases their ability to develop their emotional permission to have a loving relationship with both parents.

The book which is passed from one parent to another aims to reduce conflict and improve communication post-separation.

It is designed for separated parents but it will also be a fantastic resource for any professional working with separated parents who believe in a constructive and non-confrontational approach to Family Law. It centralizes the practical and emotional needs of the child and the completion of the book creates the development of a robust co-parenting plan. The book is divided into sections relating to all areas of a child’s life which parents need to be involved in such as contact arrangements, education and health.

Because this is a book which should be shared with all family members, there is also a children’s section in order for their voice to be heard. Through the correct use of the book, children are encouraged to talk positively about their experiences in both homes which in turn will enable them to have the ’emotional permission’ to have a positive relationship with both parents. We have also included some therapeutic tools for parents in order to support and encourage them to talk to their children about how they are feeling.

In the UK, a number of family law professionals have undergone training to deliver Handover Book sessions for parents wanting to get the most out of the book. We are in the process of developing an on-line training programme for our colleagues in Australia in order to equip them with the skills needed for delivering these sessions with parents alongside FDRS already currently offered.

The aim of the Handover Book session is for an experienced practitioner to guide parents through the process of implementing The Handover Book which is a working tool which if used correctly will improve parental communication, reduce conflict and create a robust co-parenting relationship post-separation.

At the Handover Book session, the practitioner will navigate parents through each section of the book in relation to what information needs to be shared as well as the practicalities of using the book so that their children can transition from one home to the other as smoothly as possible thus reducing the likelihood of fraught and stressful handovers.

The Handover Book is in its infancy. In light of this, to date research is qualitative. Feedback from professionals working in the arena of Family Law has been extremely positive. For professionals working with parents involved in on-going court proceedings, the book is being used as an evidenced based assessment tool for ascertaining parent’s commitment to working cooperatively in developing a co-parenting relationship. Court ordered parenting programmes are integrating the book as part of the course programme to give parents a workable tool to implement their knowledge gained on the course. When used as part of the mediation process, completion of the book forms the basis for a robust co-parenting plan.

But let’s bring it back to what this book is really about!!

On-going conflict and hostility can have a profound effect on children’s emotional wellbeing and shape the formation of their relationships for years to come. The ability for children to transition smoothly between both homes, talk openly about their experiences to both parents and be confident in the knowledge that having a close and loving relationship with both parents post separation is integral to their development.

Whilst in principle parents understand the importance of shielding their children from conflict and hostility, in reality this can be a struggle. Quite often, parents can be blaming of each other, fearful of losing their relationship with their child or resentful about the breakdown of their relationship. This conflict is played out post separation through the use of destructive communication, exposing the children to explosive handovers or positioning the children to pass information from one parent to another. In its extreme, parents can alienate their children from the other parent exacerbating the child’s sense of divided loyalty and inability to feel that they have the emotional permission to have a close and loving relationship with both parents.

It is our hope that The Handover Book will assist professionals to support separated parents to strengthen their parental alliance and in doing so develop a co-parenting relationship for the future.

For further information and to place an order visit:
www.thehandoverbook.co.uk

Financial issues and mediation

Blog, Divorce, Family mediation

by Sally Clarke, Family Mediators Association board Secretary

Financial issues can often lead to worry and very difficult conversations following separation. Very often in a relationship one party deals with all financial issues and the other party may be left feeling very vulnerable and quite frankly scared at the thought of sorting out financial issues.

The process of mediation can assist both parties to understand their financial situation and with the assistance of the mediator a settlement can be negotiated.

However finances associated with the breakdown of a relationship/marriage are resolved there is an important two stage process:-

  • The exchange of financial documentation ;
  • Negotiating an outcome

How does this work in the mediation setting?

The first stage of the mediation process, i.e the MIAMS stage involves the mediator meeting each party separately and discussing with each party what issues they would like to resolve. Providing that mediation is assessed to be a suitable process and both parties are willing to attend then each party is provided with a mediation financial disclosure booklet. The mediator will typically go through the mediation booklet during the first session of mediation, discuss what information/documentation is required and agree with each party what they need to provide/bring with them to the second session.

The process of financial disclosure is an important one. The reason being is that each party needs to be in a position to make informed decisions regarding their financial situation and future. Financial disclosure exchanged within the mediation setting is what is known as “open disclosure”. This means that the disclosure can be shown to each party’s solicitor and if the mediation process was to unfortunately break down then that documentation can be provided to the Court. This is to encourage parties to be open and transparent.

It may be the case that certain information is not available straight away and needs to be requested or third parties need to be appointed to obtain that information. Keys aspects of financial disclosure may include the following:-

  • Valuation of the family home and/or any other properties
  • Pension information known as the Cash Equivalent Transfer Value may need to be obtained
  • If there is a business involved then key information may be required such as company accounts/letter from the company’s accountant
  • Information relating to income for example P60 and wage slips or if one party is self – employed then tax returns may need to be provided
  • Income needs – the mediator will provide each party with a form to complete so that each party can work out what they need to live on each month, for example

An example of when a third party needs to be involved may be the appointment of an expert to provide input upon how pensions should be valued or shared, or it may be that an expert is appointed to value property such as the family home, or to value one party’s interest in a business or other asset.

How does the mediator help parties negotiate a financial settlement?

Once the financial disclosure has been obtained then the mediator will take copies of each party’s disclosure and provide each party with a copy of the other party’s disclosure. When both parties and the mediator are happy with the disclosure provided then discussions can begin as to what a financial settlement might look like.

The role of the mediator is to collate information and facilitate discussions. The mediator can provide legal information from an impartial point of view but cannot provide either party with legal advice. That is the role of each party’s solicitor. The mediator will suggest to the parties that legal advice is obtained in between mediation sessions. Each session will typically be a few weeks apart to provide the parties time to consider options, take advice and reflect upon discussions which have taken place within the mediation setting.

Negotiating a financial settlement is a bit like putting a jigsaw puzzle together. There are different aspects which inter-relate. Once the financial disclosure has been obtained then the mediator will typically draw up an agreed schedule of assets which is essentially a summary of the disclosure provided. The mediator then uses this to help the parties look at options.

The starting point is typically that each party needs a home for themselves and crucially any minor dependant children. The mediator works with the parties to look at how that can be funded from available resources i.e capital and by looking at what capacity, each party has to borrow monies for instance by way of a mortgage to help fund that. There is then the issue of what income each party has and how that can be used to meet their respective needs. Other factors may include looking at what debts/liabilities each party has and how they should be met and then looking at other matters such as pension provision and whether that should be shared or off-set in some way. It is the role of the mediator to help each party understand what is there and to help facilitate discussions relating to how assets/income/pension provision should be treated to help both parties reach a financial settlement which meets each party’s needs.

Financial mediation tends to take place over a number of sessions and in between each session there is the option for each party to take independent legal advice.

How is an agreement reached in mediation made legal?

Once the parties have hopefully reached an agreement in mediation then the mediator draws up two documents. One is the “open financial statement”. This is an open summary of the financial disclosure provided by each party. The other is the “memorandum of understanding”. This second document contains a confidential summary of proposals reached. The mediator will send both documents out to the parties at the end of the mediation process and once each party is happy with the contents then they are signed by the mediator and the parties. Once in a signed form then either the parties take the documentation to their respective solicitors, who convert the documentation into a legally binding form called a “consent order” which is submitted to Court for the Court to make a binding order as part of the divorce process. Alternatively it is up to the parties to what is called “waive privilege” on the documentation and submit it to the Court, if neither party has legal representation.

Family Mediation - Speak Freely, Listen, Understand and then Problem Solve.

Blog, Divorce, Family mediation

David Emmerson, Resolution

Family Mediation - How it works

Family mediation is a voluntary, confidential out of court process that helps you reach negotiated solutions to disputes about arrangements for children, maintenance, property, pensions and capital. Most often, mediation brings both parties together with a mediator in a comfortable room where you are free to discuss matters in a relaxed atmosphere.

It works because the mediator, a neutral and impartial third party, and the process itself encourage people to have a voice and speak freely. The mediator will also ensure that you listen, sometimes in a way you have not done before, to what the other party is saying, so that you at least understand what their issues are. You do not necessarily have to agree, but it certainly helps when you understand.

Information is gathered and verified so that each party’s financial position is clear. The mediator fixes an agenda with you and problem solves all the issues so that a fair and workable outcome is achieved.

Children

Naturally, both parents will believe children are the most important factor. However, parents can often have differing views as to what is best for their children and what the arrangements should be for the children to spend time with each parent. In mediation, it is important that the views of each individual child are taken into account. This can be done in a number of ways, such as having a mediator specifically trained in children issues speak individually with the children on a confidential basis. The children’s views are then fed back into the main mediation. In many cases, this is not necessary but in certain cases it can be vitally important. This approach does not mean that the children themselves are making decisions, but simply that their views, uncomplicated by the pressures of speaking with either parent, are known and taken into account.

Role of the mediator and the lawyer

In some cases the mediator may also be a trained family lawyer, but while mediators can provide key information about what the law is, they cannot give legal advice specific to your situation. It is very important for each party to have the benefit of independent legal advice from someone like a Resolution accredited specialist who will explain both what the law is, but also importantly how it applies to each individual’s particular case. Whereas family case law and statutes can be found easily on the web, the internet cannot tell you how the law applies to your circumstances.

Using experts

Another advantage of mediation is that the parties can agree to bring in the expertise of a specialist to help resolve issues. This might be instructing a valuer to value a company, business, or property. It could be bringing in a pensions expert to work out what the best way for both is to reschedule pension investments or an independent financial advisor who can help you fix budgets. Other experts can include divorce coaches and therapists where one or both parties are finding the emotional side of separation particularly challenging.

Costs and time

The costs of mediation is significantly less than the costs of a contested court process, even if you use a solicitor to support and assist you throughout. The length of the process varies because the number of sessions really depends on how complex the issues are. It is not uncommon for matters involving children and finances to be resolved in two to four sessions, which might be spread over a two to three-month period. This compares very favourably with a fully contested court process, which can often take 12-18 months.

Safeguarding

Mediators are trained to deal with an imbalance in bargaining power or indeed bargaining skills. However, cases with relevant safeguarding and domestic abuse issues are not suitable for mediation.

At times, mediation sessions can be intense, challenging and even upsetting, not least because these issues are invariably very important to both parties. It is the mediator’s role to ensure that the sessions never get out of hand and that time is allowed for parties to compose themselves.   Still, the tension that can arise from mediation is nothing compared with the pressure and anxiety that a contested court case can bring with the prospect of giving evidence, being cross-examined and someone else making a decision about your children and your finances.

Outcomes

Research, including Mapping Paths to Family Justice, and statistical information show that most mediations resolve issues successfully and that the vast majority of participants are happy with the outcomes and the process.

“What’s it like?”

Blog, Divorce, Family mediation

Written by Jeremy, aged 16

Whats a story,
Without a dilemma?
What’s a family,
Without a father?
What’s it like,
Getting a full nights rest?
What’s it like,
Living with both parents?
What’s it like,
Being happy?
What’s it like,
Telling a friend?
What’s it like,
Having a reason to wake?
What’s it like,
Being able to concentrate?
What’s it like,
Feeling ‘normal’?
What’s it like,
Without cuts on your wrists?
I would tell you,
What it’s like,
But I just don’t know

www.voicesinthemiddle.org.uk

Amongst all the heartache and anger, there is fear!

Blog, Divorce, Family mediation

Anne Braithwaite, Chair and Treasurer of The Family Mediators Association

I have been a mediator for over 25 years. For all but the last 5 ½ of those years, I was also a divorce lawyer dealing with all the fall out when a marriage ends with a focus on money. I guess I’ve now spent going on for 35 years helping people from all walks of life sort out what to do when the world as they know it ends. I know that, amongst all the heartache and anger, there is fear about what the future will bring. Until finances are sorted out it’s impossible to live other than in limbo, a very insecure place to be.

So everybody who separates needs to resolve financial issues before they can rebuild their lives. Often having a safer place financially speaking helps focus on the emotional needs of children. It also means you can answer the questions which they have about where they will live and go to school.

Many people don’t have a clue where to start or, even if they do, feel the need of some professional help. A mediator gives that help. Mediators don’t just get couples in a room and then let them just try to sort things out. How would anyone know where to start? That’s the mediator’s job. Whilst being flexible to the needs of each couple, mediators are in charge of the actual process. Your mediator ensures that sessions have focus and that the whole process feels that it is going somewhere. Mediation has to feel safe and that it has a structure and purpose.

Separation is new to you. You need to understand what the rules are. Mediators help there by giving what we call “legal information”. That means explaining things such as what the relevant legal factors are in a neutral way. I know my clients find that knowing what a court would consider helps them talk about their own financial division and what feels like a fair outcome. Having that information enables people to start to talk with a sense of direction.

Mediators also help to explain what you might do about pensions for example, a subject of great importance where most people feel at least a little at sea. Mediators make suggestions about how to achieve agreed valuations and get mortgage advice. They help you pull all the threads together. This is all new to clients but many mediators have years of experience in the family law field. We are guides through the process who can pass on knowledge so that you realise that you actually can be in control of what happens. Crucially a mediator will help you work out the shape of your future.

This is all against the background of full financial disclosure. There has to be evidence about income and capital, not just taking each other’s words for things. Apart from the fact that nobody can start to talk about dividing everything up without establishing what is there in the first place, mediators realise that trust is usually in short supply. Clients only feel safe to negotiate when they are sure of the facts.

A mediator will also listen to what is important to you both and may help you take into consideration things that haven’t even occurred to you, or at least not to both of you, such as being able to live in areas which offer a chance of getting children into good schools and how to help your children through higher education and to afford the school trips that their friends will go on.

When you decide on what you want to do, the mediator sets that out in a memorandum of understanding. This isn’t legally binding yet as it is the last step in negotiations. It’s also a good idea to have legal advice before making your proposals legally binding. I always strongly suggest to my clients that they take that advice in between our mediation sessions and not wait until the mediation is concluded. The terms in the memorandum are made legally binding by having either a separation agreement or a consent order made in divorce proceedings.

Mediation is a professionally led means of negotiation, a negotiation where you are assisted by a neutral third party who will be able to give you legal information and practical pointers whilst ensuring an equality of bargaining power between the two of you. It is a process where the two of you determine the shape of your futures for yourselves. After all only the two of you know what will best suit you and your family. What mediation is not, is remotely fluffy.

What does family mediation involve?

Blog, Divorce, Family mediation

Written by Jane Robey, Chief Executive, NFM

This month thousands of couples across the country discovered that the Christmas holiday had been the last straw for their failing relationship, and decided to call time on their marriage. But what do they do next?

Even if we haven’t experienced it personally, we all know someone who’s been through a divorce. We’ve seen the impact on the emotions of the separating couple but also more importantly, the lasting effect it can have if children are involved.

When a couple separates there are vital parenting arrangements to be sorted: where the children will live; when they’ll see the other parent; their education; maintenance and child support; holiday arrangements; what happens to the pet, and more besides. If they’re handled badly the repercussions last years and span generations.

Then there are material things: what happens to property, finance, debts and pensions? The process can deteriorate into a destructive, competitive and litigious contest as couples adopt the traditional ‘mindset’ of divorce.

This sees them head straight off to a solicitor and the court room for what’s usually a long, drawn out battle as they seek to score a ‘victory’ over their ex.

It can last months, if not years, and can cost the earth. And then finally, when the court delivers its verdict, the arrangements rarely suit anyone’s interests, least of all the children. The one person in the court room who knows hardly anything about the family – the judge – decides everyone’s future.

Separating couples are often completely unaware there is a simpler way to settle things – a way that keeps them in the driving seat, influencing and controlling the outcomes, rather than having the outcomes imposed upon them.

Family mediation does not try to keep couples together. It’s not counselling. Mediation accepts that change happens in our lives and, instead of dwelling on what might have been, it helps everyone involved move forward to the next stages of their lives – apart –in a positive way.

The seven habits of successful mediation participants

Blog, Divorce, Family mediation

by Glynne Davies, College of Mediators

The seven habits of successful mediation participants. The following mini case studies are genuine, although the names have obviously been changed to protect…well me really!

1. They are sure that the relationship is over permanently

Mediation is a process designed to help couples, as famously said by Gwyneth Paltrow, consciously uncouple. If you are harbouring secret thoughts that your ex is just going through a mid-life crisis, and as soon as he/she comes to his/her senses he/she will come running back to you, then mediation is not for you. You may be able to go through the motions, but at the moment when you have to make a decision, the primeval part of your brain will take over and shout “Don’t do this! As soon as you do this it will all be over.” If you are ambivalent about separation, then if possible take a bit more time to come to terms with what’s happening.

Case Study: Anthony and Cleopatra had 5 sessions of mediation, at the end of which we had several options, any of which were “approved” as fair by their respective solicitors. But Cleopatra couldn’t let go of the relationship and kept prevaricating. In the end we put mediation on ice for 6 months, at which point they returned and settled in one session.

2. They want to minimise solicitor costs and avoid court costs?

Well, duh. Everyone wants to minimise costs and avoid court…don’t they? Strangely enough the answer is no. Some people are so hurt/angry that they would sooner spend every penny that they have rather than share it with the ex that has broken their heart. Others that like to think that their situation is so difficult that only a judge can unravel it. Mediation is unlikely to help them, but for those who simply prefer to allow their solicitors to negotiate on their behalf, mediation can help save time and money.

Case Study: Heathcliff and Cathy used mediation to complete their financial disclosure and listen to initial proposals for settlement, They agreed several important issues and narrowed the gaps on others, but Cathy wanted her solicitor to conclude negotiations. They still saved hundreds of pounds by using mediation to complete their financial disclosure, agree their “Form E” information and listen to each other’s proposals.

3. They can put the needs of their children first

In the horror of separation it is easy to lose sight of the needs of the children. They become pawns in the worst game of chess ever. Research tells us that separation doesn’t hurt children, but conflict does. By resolving the conflict, you put the needs of your children first

Case Study: Porgy and Bess had sent their daughter to Hungary to be with grandparents because neither parent wanted the other parent to “have” her. They took the stance “If I can’t have her, neither can you.” As a result the child was away from home for 8 months. They sorted out a shared care arrangement in one session of mediation that meant that the child could return home

4. They are honest and open

It’s not uncommon for one party to deal with “the money side of things”, and for the other party to feel at a disadvantage. Mediation ensures that financial disclosure takes place fully and openly, and at a pace that promotes equal understanding and informed consent.

Case Study: Bonnie was nervous about using mediation because Clyde had always taken care of the finances. We took financial disclosure at Bonnie’s pace. Clyde was relieved that he had an

opportunity to explain things in a non-confrontational way, and Bonnie appreciated having a greater understanding of their situation.

5. They are flexible/willing to listen

If you believe that there is only one solution, and that mediation would be a good way for the mediator to convince your ex of the rectitude of your position, then mediation is not for you

Case Study: Fred and Ginger each attended a separate MIAM. Ginger was happy to keep an open mind about options for settlement, but Fred was adamant that there was only one solution and that he wanted to go to court to get it. By attending the MIAM Fred and Ginger complied with the statutory requirement to consider mediation.

6. They want closure

Some people feed off conflict with their ex. They feel safe being angry; a conflicted relationship is better than no relationship. But for mediation to succeed, there has to be a degree of emotional neutrality. To put it simply, you need to be sick of the fight.

Case study: Elsa and Anna separated 3 years before they came to see me, referred by court. Theirs had been a story of constant bickering over trivia. They had settled the major things fairly easily, but continued to make spurious applications to court for minor changes to their ever more detailed contact order. In mediation we established that there was almost nothing in dispute, and talked about the fact that they had never got “closure”. I signposted them to couples counselling to talk about the end of the relationship, and how to “let it go”. They returned to mediation and agreed a parenting plan.

7. They have the stamina to stay with the process

Mediation is not for the faint-hearted, but if you can practise the above 6 habits in mediation, you will get there.

Case study: All the clients who have ever successfully concluded mediation

Mediation Following Allegations Of Domestic Violence

Divorce, Uncategorized
Written by Jane Wilson, Resolution.
Mediation is often discussed in the context of helping two former partners reach an amicable agreement. Every couple is different, when highlighting the benefits of mediation, assumptions cannot be made about clients’ circumstances.

What if there are more alarming issues in play? Domestic abuse is often cited as a reason not to proceed with mediation – indeed, domestic violence remains one of the factors which exempt someone from attending a MIAM.

In many cases this will be right, and domestic abuse sufferers can be very anxious about the thought of coming for a MIAM or mediation. Yet, handled carefully, and in the right circumstances, mediation can be an effective way of finding a way forward.

It involves thinking about mediation slightly differently. For example, there should be separate MIAMs or intake meetings. Clients need to be screened really carefully to make sure that both would feel able to articulate their views at mediation. There are other things you can, or should, do, such as making arrangements for the domestic abuse sufferer to arrive and leave first. This means that the other party cannot confront them outside the building, bump into them in a reception area or follow them when they leave. The mediation can also take place in separate rooms, with the mediator going between the two.

As a former Chair of Resolution’s Domestic Abuse Committee, and a member of the the FMC Board of Directors, I know the positive role mediation can play, as part of a rounded approach, in making arrangements for some couples where there has been an allegation of domestic violence. It is not for the faint-hearted, but the right training and experience can help you as a mediator provide an invaluable service.

The case study that follows, seeks to demonstrate how mediation can be used in these circumstances.

A case study

M and F have agreed to mediate contact arrangements for their daughter, D aged 4. At the initial separate assessment M said that there was some domestic violence when they were together and once post separation, and on three or four other occasions F kicked his way into M’s property. D was upstairs. D is afraid to go and spend time with F. When there is a noise she will say ‘Is that Daddy trying to get in’. For the last 2 years he has been seeing her at the maternal grandparents home.

This raises issues as to how mediation should take place, the risk to M and D from contact and the appropriate options to explore for future contact.

How should mediation take place?

This will depend on whether the violence was separation instigated violence, situational couple violence or coercive controlling violence.

Separation instigated violence occurs when there are unexpected and uncharacteristic acts of violence perpetrated by a partner with a history of civilised and contained behaviour. It is generally perpetrated by the person being left and involves one or two incidents at the beginning of or during the separation such as lashing out, throwing things, destroying possessions, throwing clothes out or ramming the partner’s car. It is unlikely to occur again.

Situational couple violence mostly arises from conflicts or arguments between the parties. It can be in the past, throughout the relationship or in the months prior to separation. It is less likely to escalate over time than coercive controlling violence.

Coercive controlling violence involves a pattern of emotionally abusive intimidation, coercion and control coupled with physical violence. It can include intimidation, emotional abuse, isolation, minimising, denying and blaming, use of children, asserting male privilege, economic abuse, and coercion and threats (Pence and Peymar 1993).

M should be seen on her own to establish the nature of the domestic violence. If she were to be asked about the details in front of F she would feel in inhibited by his presence and would also be at risk of repercussions from F. She will need to be told that anything she discloses will be held in confidence unless she gives permission for it to be discussed with F.

It can be difficult for a domestic abuse sufferer to talk about the abuse. One coping method employed to survive in an abusive relationship is to blank out the most serious abuse. Gaps in her story may mean abuse that is too painful to recall. Also details can be distressing or embarrassing to recount and an admission of a poor choice of partner. It will hep to normalise M’s experience – one in four women suffer domestic abuse. A domestic abuse sufferer may be more likely to disclose coercive-controlling violence after establishing a trusted relationship with an open and empathetic listener (Miller 1997). The impact of the abuse on M’s needs to be determined in order to form a view whether she would be able to articulate her views at mediation.

A mediator can acknowledge the emotions felt by a domestic abuse sufferer but must remain impartial and be seen by both parties to remain impartial. Any support offered must be even-handed. Therefore, if support is offered to the M, then F must also be offered support. For example information could be given to M about domestic abuse support services and to F about appropriate programmes.

It is likely that parents with Separation-Instigated Violence will benefit from mediation, with appropriate safeguards and referrals to counselling for the violent partner to help re-stabilise psychological equilibrium.

It is also likely that the majority of parents who have a history of Situational Couple Violence are not only capable of mediating, but can do so safely and productively with appropriate safeguards. (Kelly and Johnson). These men and women appear to be quite willing to express their opinions, differences, and entitlements, often vigorously (Ellis & Stuckless, 1996; Johnston & Campbell, 1993).

The use of mediation where Coercive Controlling Violence has been identified

is more problematic. When screening indicates fear for one’s safety, a history of serious assaults and injuries, police intervention, or severe emotional abuse, including control and intimidation, alternatives to mediation should be considered. If both parties prefer that mediation proceeds, it should be shuttled, with separately scheduled times, a support person present, and protection orders in place. (Kelly and Johnson). Mediation can be preferable, however, for sufferers of coercive controlling violence to court adjudication because of the difficulty they face in giving evidence. In a safe setting they may have more opportunity to be heard and feel empowered. (Newmark, Harrell, & Salem, 1995).

If the violence was coercive controlling violence there is a risk that F could use the mediation process to control M. Perpetrators use violence to maintain the upper hand and control their spouses. Thus a woman in mediation usually cannot advocate for herself without fearing the response of her abusive partner (Geffner & Pagelow, 1990).

If further domestic abuse is disclosed to the mediator after mediation has commence and it is considered that it is still suitable for mediation to continue this will only be possible if M then consents to F being informed of what she has said about any further incidents she has disclosed to the mediator.

What is the risk to M and D if D spends time with F?

If there was coercive controlling violence there is a risk that F will use D’s time with him as a means of further controlling M. Also, if the conflict between F and M continues this will be harmful to D.

Where domestic abuse is occurring any children will also be physically or sexually abused between 30% and 66% of the time (Eddleson 1999). The risk of child abuse in the context of Coercive Controlling Violence is very high (Appel & Holden, 1998). Whether or not there is a link between situational couple violence and child abuse is not currently known.

Many domestic abuse sufferers believe their children are unaware of the abuse because they are asleep in bed or have left the room. However, the reality is often that the children have been woken by the noise of the violence, items being thrown or raised voices. Often they will have retreated out of physical harms way but are still at risk of emotional abuse from the incident. They will also see the injuries inflicted upon the domestic abuse sufferer.

It is deeply traumatic for children under the age of 8 to witness the abuse of the person who is their primary care giver. Psychological tests showed that these children found this more disturbing than the effects of direct physical maltreatment (Runyan 2006).

Children who are exposed to violence may suffer from a variety of trauma symptoms, including nightmares, flashbacks, hypervigilence, depression, and regression to earlier stages of development (Graham-Bermann & Levendosky, 1998).

Whatever arrangement is considered appropriate for D will have to be introduced in a manner so that D can feel safe with F. D will also need to know that M feels that she will be safe. A constant theme for victims of domestic abuse is the safety and well-being of their children (Jaffe, Zerwer, Poisson). M will only feel able to agree a progression of D’s time with F if she feels that D will be safe.

What are appropriate options to explore for future arrangements?

The experts report of Drs Sturge and Glaser in Re L (Contact: Domestic Violence) [2000] considered there should be no automatic assumption that contact to a previously or currently violent parent was in the child’s interests, if anything the assumption should be in the opposite direction and he should prove why he can offer something of benefit to the child and to the child’s situation. They said :

‘Domestic violence involves a very serious and significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally (and in some cases physically – which meets any definition of child abuse).

Without the following we would see the balance of advantage and disadvantage as tipping against contact:

(a) some (preferably full) acknowledgment of the violence;
(b) some acceptance (preferably full if appropriate, ie the sole instigator of violence) of responsibility for that violence;
(c) full acceptance of the inappropriateness of the violence particularly in respect of the domestic and parenting context and of the likely ill-effects on the child;
(d) a genuine interest in the child’s welfare and full commitment to the child, ie a wish for contact in which he is not making the conditions;
(e) a wish to make reparation to the child and work towards the child recognising the inappropriateness of the violence and the attitude to and treatment of the mother and helping the child to develop appropriate values and attitudes;
(f) an expression of regret and the showing of some understanding of the impact of their behaviour on their ex-partner in the past and currently;
(g) indications that the parent seeking contact can reliably sustain contact in all senses.’

They suggested that without (a)–(f) above they could not see how the non-resident parent could fully support the child and play a part in undoing the harm caused to the child and support the child’s current situation and need to move on and develop healthily. There would be a significant risk to the child’s general well-being and his emotional development:

‘Without these we also see contact as potentially raising the likelihood of the most serious of the sequelae of children’s exposure, directly or indirectly, to domestic violence, namely the increased risk of aggression and violence in the child generally, the increased risk of the child becoming the perpetrator of domestic violence or becoming involved in domestically violent relationships and of increased risk of having disturbed inter-personal relationships themselves.’

They added to the list (h) respecting the child’s wishes.

Ground rules to which both parties must agree for mediation to be effective have been suggested as follows: (Girdner, 1990).

  • Acknowledgment of past abuse
  • Encouragement of the abused partner to pursue an order for protection
  • Requiring and monitoring attendance at anger management classes or therapy for the abuser
  • Requiring and monitoring the participation of the abused partner in services for domestic abuse sufferers or therapy for the abused partner.

 

The violence alleged by M will therefore have to be put to F. He will need to be seen separately. This will provide balance as M will already have been seen on her own. Also there could be risks to M from his reaction to any further allegations. If appropriate, he can be offered support with information about anger management courses or, if there has been coercive controlling violence, about domestic violence perpetrator programmes.

Only if the requirements set out by Sturge and Glaser in a – g above are present can progressing arrangements for D to spend time with F be an option.

Of the 12 families reviewed by Women’s Aid, where a total of 19 children were killed as a result of arrangements for time with the perpetrator, five families had made the arrangements without court proceedings. If relevant violence is denied by F then the only safe options are those based on an assumption that M’s allegations are true. If this is not acceptable to F then mediation is not suitable and F will need to seek adjudication on the issue through the court so that findings can be made on the disputed allegations.

If the incidents have been such that D would be at risk of violence or other harm then only a supervised arrangement can be a current option. M will need to see evidence of change in F’s behaviour before D spending time with F unsupervised can be considered as an option. To achieve change F may need to agree to attend an anger management or domestic violence perpetrator programme, as appropriate.

Domestic abuse sufferers can experience a loss of confidence and self-esteem. This makes dealing with professionals, who appear as authority figures, hard. There is a risk that M may have reservations about an option but agree because she lacks the confidence to disagree. She may perceive the mediator to be giving approval to a proposal from F, by allowing it to be considered. Care will have to be taken that only appropriate options that would be approved by a court are considered.

Jane Wilson

Resolution National Secretary

Member, FMC Board of Directors

References

Appel, A. E., & Holden, G. W. (1998). The co-occurrence of spouse and physical child abuse: A review and appraisal. Journal of Family Psychology, 12, 578 –599.

Edleson, J (1999) ‘Children Witnessing of Adult Domestic Violence’, Journal of Interpersonal Violence, Vol. 14, No. 4, pp839-70

Ellis, D., & Stuckless, N. (1996). Mediating and negotiating marital conflicts. Thousand Oaks, CA: Sage

Geffner, R. & Pagelow, M.D. (1990). Mediation and child custody issues in abusive relationships. Behavioral Sciences and the Law, 8. 151 – 159

Girdner, L.K. (1990). Mediation triage: Screening for spouse abuse in divorce mediation. Mediation Quarterly, 7. 365 -376.

Graham-Bermann, S. A. & Levendosky, A. A. (1998). Traumatic stress symptoms in children of battered women. Journal of Interpersonal Violence, 13, 111-128.

Jaffe, Zerwer, Poisson. The barriers of Violence and Poverty for Abused Women and their Children After Separation

Johnston, J. R., & Campbell, L. E. G. (1993). A clinical typology of interparental violence in disputed-custody

Kelly, J.B., & Johnson, M.P., (2008) Differentiation among types of intimate partner violence: research update and implications for interventions

Miller, T.W. et al., (1997) Clinical Pathways for Diagnosing and Treating Victims of Domestic Violence, 34 Psychotherapy 425, 431

Newmark, L., Harrell, A. & Salem, P. (1995). Domestic violence and empowerment in custody and visitation cases. Family and Conciliation Courts Review, 33, 30 – 62.

Pence, E., & Paymar, M. (1993). Education groups for men who batter: The Duluth model. New York: Springe

Runyan, D (2006) ‘Listening to Children From the LONGSCAN Studies on Child Abuse and Neglect: Comparing Child Self-Report and Adult Report of both Exposures and Outcomes’ Conference Paper, XVI the ISPCAN International Congress on Child Abuse and Neglect, York, 3-6 September

Sturge, C; Glaser D (2000). “Contact and domestic violence – the experts’ court report”. Family Law - Bristol 615.

Women’s Aid (2016) Nineteen Child Homicides: What must change so children are put first in child contact arrangements and the family courts.

 

Dear Mum and Dad

Blog, Divorce, Family mediation

An email from Jack aged 13 to his parents for New Years Day.

Dear Mum and Dad,

I am sending this email to you both. I never see you together now, so this is the only way to speak to you at the same time.

It’s exactly three years to the day since you split up. It was New Years Day and we had all had a great Christmas, I thought, so when you called Poppy and me into the sitting room and told us you had something to tell us, we just weren’t ready for what came next.

You weren’t getting on and you didn’t love each other any more, you said, so Dad was going to move out. Just like that. Poppy burst into tears. She was only 6. How was she expected to understand? I felt a horrible cold feeling spread right through me. I just froze.

It wasn’t anything to do with us, you said. That was the first lie. Of course it was to do with us. Everything changed in that second. Dad said he was leaving Mum, not us. That was the second lie.

Then he went upstairs and packed a bag and drove away and left us. I was 10 years old and I grew up that day.

After he went, you tried to be reassuring Mum. You said, if things were better for you and Dad and you were both happier, then we would be happier too. That was the third lie.

Since then it has been such a mess. You two couldn’t agree about anything. You wouldn’t talk to each other, so Poppy and I ended up taking messages between you. ‘Tell your father he’s got to pick you up from school on Saturday’. ‘Tell your mother I’ll be late picking you up tomorrow because I’m working’. It was like that all the time. At first I tried to help sort things out. When were we going to see Dad and when were we going to see Mum? When were we going to see Granny and Gramps and Auntie Belle and our cousins? Where would we be on Poppy’s birthday? Where would we be on my birthday?

It was hopeless. You both had the lawyers. We had no one to help us. No one asked Poppy and me what we wanted and neither of you were listening. You were both so tied up in going to court and fighting things out. We just kept quiet, so as not to upset you anymore and there was no one to help us sort out the muddle.

Apparently the judge decided that we would have alternate weekends and every Wednesday night with Dad in his new flat over an hour away. No-one asked me what I wanted or if I wanted to go to court to have a say. After all, it was my life and Poppy’s they were talking about. Wednesday night was my swimming lesson and Poppy’s Brownies, but that soon got too difficult to organise, so we just gave up going. In the end it was easier to say we didn’t mind.

Things got worse when you got a new girl friend Dad, and Mum freaked out about us meeting her. You said we would have to move out of our house, as you needed the money to buy a house of your own. We’d always lived in that house and we loved it. Somewhere secure when everything else was changing. Now that was going too.

You said we should make a new start Mum, so we moved to another town miles away. Poppy and I had to change schools and I hated the new one. I had to leave all my friends behind. We only saw you once a month then Dad, as you were too far away. Anyway, you were too busy with a new wife and a new baby coming. I get all that Dad. I really do, but it was tough when you stopped coming to football matches and neither of you came to Sports Day. I felt I didn’t matter any more, so I stopped trying at school. No one knew me there, so the teachers thought that was just how I was.

The reason I’m sending this email now, is because the same thing is happening to a boy in my form. He’s really upset, but he says his parents aren’t going to court - they’re going to see someone called a mediator instead. She’s helping them sort all this stuff out - who they will see when, and where they’ll live. He said he saw her too and she asked him what he wanted to happen and how he thought it should all work. Then she talked to his parents and they really listened because they could see that it was how he really felt and they want to do the best thing for him.

Why didn’t you do that for us? Why didn’t you go to a mediator at the beginning instead of tearing each other apart in court? I really need to know. Didn’t you realise how horrible that would be for Poppy and me? It wouldn’t have changed you not loving each other any more, but it could have made things so much easier for us. It was your choice wasn’t it?

With love from your son Jack.*

As dictated to Judith Timms OBE. Vice President FMA. Founder and Trustee National Youth Advocacy Service (NYAS).

* This is not a real case, but Jack’s experience is typical of that of many of around 240,000 children and young people under the age of 16, whose parents separate each year in England and Wales.

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