Heated emotions in cool hands: Children always suffer when parents separate, but the trauma can be less if the process takes place out of court, through mediators. Celia Dodd talks to people who tried this approach

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Indy Lifestyle Online
On Monday the Lord Chancellor will present his long-awaited Green Paper on Mediation and the Grounds for Divorce, heralding what many hope will be a major shift in the way divorce is handled.

The Green Paper is likely to put an official seal of approval on the work of the mediation services, which have been used by more and more divorcing couples since they were set up in England 15 years ago. Over the same period there has been a softening in the legal profession's attitude to divorce. Battles between opposing solicitors, who used children, money and property as weapons, have generally given way to a more civilised approach whereby couples negotiate realistic agreements.

In future, the first stop for separating couples may no longer be a solicitor, but the local divorce information centre, where their case will be assessed. They will then be referred to anything from mediation to marriage guidance.

Mediation - or conciliation, as it is also known - cannot take the pain out of divorce, but it does offer couples a chance to meet on neutral territory and negotiate arrangements, particularly about children, with the guidance of a third party. The great appeal of mediation is that it enshrines the notion that parents divorce each other but not their children. It aims to make divorce less traumatic for children by reducing the conflict between their parents. It also helps unmarried couples, who do not feature in the divorce statistics, but who may require as much help in planning the family's future.

Existing mediation services take three forms. In-court mediation, usually with a court welfare officer, is generally considered to be the least successful, because it takes place at a late stage, and the single session usually lasts for only an hour.

Independent services, which have sprung up all over the country as a result of local initiatives, offer the two other types of mediation. Comprehensive mediation, under the umbrella of the Family Mediators' Association (FMA), offers detailed discussion of all issues: children, finances and property; while the National Family Mediation (NFM) service generally only offers mediation on issues relating to the children. Mediation is deemed successful if a written agreement is reached. Last year, out of 6,500 mediations, NFM recorded a 70 per cent success rate.

Comprehensive mediation takes longer, and involves two mediators, one of whom is a lawyer. Some solicitor-mediators are concerned that the Lord Chancellor, keen to get mediation on the cheap, may ignore the importance of a legal expert in negotiations about money and property.

There is also concern that, if the Government does not establish a system of accreditation and accountability, anyone will be able to set themselves up as a mediator, and mediation will be devalued in the public mind in much the same way that therapy has been. In Scotland the Law Society is taking on the responsibility for accrediting solicitor-mediators; in the rest of the United Kingdom it is left to the FMA and NFM, which have recently agreed a joint code of conduct.

The success of mediation relies on the skill and training of the individual mediator. And because it also depends on the co- opeation of husband and wife it does not suit all couples. In particular, it is not appropriate for victims of domestic violence, who cannot be expected to meet their partner in a mediation session. Thelma Fisher, director of NFM, says: 'Mediation is not something that everybody wishes, or ought, to use. There has always got to be a route for those who cannot or do not choose to use mediation. And if the power balance between the couple is very uneven, mediation will try to redress that, but there are some couples who ought to be going straight to a court.'

Critics of mediation claim that it does nothing but reproduce the relationship that already exists in the marriage, and that the more vulnerable partner, often the woman, is more likely to be persuaded to agree to things that she does not want. As a result, wife or husband may emerge with a bargain significantly worse than what might have been obtained in the courts. Sona Osman of the lobby group Rights of Women says: 'Mediation doesn't work where you have an over-zealous conciliator who has already formed a view. Some women are very unconfident, they can be made to feel guilty very easily, and then they'll capitulate. It's fine if you're middle-class and articulate and happy about bearing your soul, but women who don't come from that kind of background may listen to conciliators and think they know best.'

Because most services charge a sliding scale of fees (NFM recommends pounds 1 per pounds 1,000 of earnings), mediation is at present a middle-class option (although no one is turned away because they cannot afford it). Even so, it usually costs much less than a conventional divorce. Most couples who go to mediation also use solicitors, but their workload, and their fee, is greatly reduced.

In the long term, it seems likely that more mediation could cut the legal aid bill for divorce, presumably a high priority for the Lord Chancellor. But the immediate cost of building up a national network from the existing services, which currently enjoy charitable status, will be considerable. So far their survival has relied on goodwill and a hotchpotch of resources: anything from fun runs to local authority grants and clients' fees. Clearly, if the Government wishes to pave the way for less traumatic divorce, public subsidy for mediation is urgently needed.

WE WERE SAVED MONEY AND A LOT OF HEARTACHE

Mark Dando went to mediation shortly before he and his wife, who have three children, divorced in 1991.

MY WIFE filed for divorce on grounds of unreasonable behaviour, but nothing was decided for months. It was exasperating; obviously there were major decisions to be made about the children, yet there wasn't a framework within which to make them.

My solicitor wanted me to withhold maintenance and generally behave like a swine. I refused because I felt that it wasn't responsible and would have done the children more harm than good.

After about 10 months my wife and I decided to go to mediation to sort out the arrangements for the children; it would certainly have been better if we had gone at the beginning. Even so, it was a huge help. It allowed us to think about what was best for the children.

The first session was very difficult. I felt a range of things from being angry and wanting to say things, to feeling defensive and not wanting to speak, to being very manipulative.

It was the most emotional and anxious time of my life. Yet the mediator made sure that our emotions were kept under control and got us to focus on issues; he was very skilled and he never took sides. I'm fairly assertive and used to dealing with tricky situations. The mediator played that down and tried to strike a balance between us. When I said things which weren't true he took me to task. That's in stark contrast to solicitors who never confront you.

Because the divorce petition was against me, there were all these statements that I was the guilty party. Divorce proceedings want a winner and a loser, but this isn't the case with mediation where neither of us was seen as the guilty or the innocent party.

Conciliation hasn't improved the way my wife and I communicate; we don't have much contact with each other now. But it did sort out the arrangements for the children once and for all, and set the scene for us to move forward. I was happy with the agreement we reached, where the children spend half their time with their mother and half their time with me, which is unusual. I would have done anything through the courts to make that happen, which could have cost thousands of pounds. Mediation cost me pounds 25 for three sessions, and it was worth pounds 20,000. It saved a lot of heartache. If we had continued to argue over the children the emotional drain on us all would have been enormous.

IT MADE US SEE THAT CHILDREN COME FIRST

Rachel Philips lived with Oliver Davies for several years but they never married. They have two children aged five and went to conciliation a year after they separated.

AT THE beginning the conciliators were faced with two people who could not communicate except through a third person - it was that antagonistic. They sat in the middle and refereed without coming down on either side. And though I suspect they were not as neutral as they made out, they were careful not to allow it to show. They were staggeringly professional in their ability not to take sides.

I didn't look forward to the sessions at all, in fact I hated them. At that time Mr Davies - I call him that as a way of emotionally distancing myself from him - used to make me shake. But part of the process is coming to terms with that. And having to look at one's motives for saying, 'No, I want the children to do such and such', was a good discipline.

It's very important where children are involved not to be selfish, but when you're in an antagonistic situation, trying to keep the children out of that antagonism is difficult. Conciliation pulled the pair of us up short. The conciliators made us see that it was the children who are important, and that we should make sacrifices to make their lives easier.

In the year after we split up we had been trying to sort the children out through solicitors, which really meant we were battling from entrenched positions. Because we were not married the legal battle about finances is nowhere near settled, even now. Right at the beginning the children tended to get mixed up in that, and get treated as goods and chattels. It was good to extricate them from that.

Our solicitors suggested conciliation. I'd never heard of it, and having gone through relationship counselling I was rather dubious, because it seems to arm your partner with sensitive information. I didn't go for my sake. It really was about the children. I didn't get what I wanted, which was a reduction in the number of nights they were staying with Mr Davies. So for me it was a slightly bitter-sweet solution. But I had to stand back and think, 'I don't matter'. From the children's point of view it was the right solution; they were more settled afterwards.

We agreed that we should stop trying to sort things out when Mr Davies came to pick up the children. We managed to establish that it wasn't good for them. Communication has become easier with time, and I suppose it's because we set it up through that neutral environment.

You can go back and have another go at conciliation if things aren't working out. I'm sure there will be further tensions as the children get older and have their own views on access. We may well use the service again.

The names have been changed.

YOU NEED TO FEEL THEY'RE ON YOUR SIDE

Amanda Stevenson, who has two children aged eight and six, went to mediation with her husband shortly before their divorce two years ago.

AFTER we split up my husband and I had a lot of problems about access to the children. The situation was terrible for all of us. We got to such a stalemate that I suggested we go to mediation.

It was a difficult process to go through with my husband because there was so much emotion on both sides. You have to feel safe - not that three people are ganging up on you, as I did.

We each had one session on our own with different mediators, and then we had a joint session with both of them. During the individual session my mediator gave me the impression that she agreed that some of my husband's requests were unreasonable, but when we all got together both mediators fell at his feet. My husband is a successful salesman who is very clever in that sort of situation, and they allowed him to control the interview. I felt I had no support at all.

They were both middle-class women in their sixties. I'm sure they were well intentioned, but they had no understanding of my circumstances, of a young mother with two children who was also trying to work. I was prepared to accept that some of my demands were unreasonable, but you have to feel that the mediator understands why you're asking for something.

They had some pat ideas on how one should behave. For example, I found it very upsetting that my husband would always come to pick the children up with his new lady. They couldn't understand why that was a problem for me.

The other issue was that my husband always wanted to vary the access times and I wanted a framework to work to, so that I knew, within reason, when the children would be with him. He said that wasn't possible because of his work. The mediators just said, well, you just have to give and take.

We didn't come away with any firm proposals. As we got to each point there were some woolly suggestions made, but no attempt to make us agree to a way forward. After about six weeks they sent us some typed notes, and that was it. In the end we agreed that my husband would have the children on alternate weekends - we'd formulated that between us really, and the judge approved our

arrangements.

My solicitor was keen to go for a better financial settlement, but after a year of problems I just gave up. You get to the stage where you just can't bear any more unpleasantness. I just wanted to get on with my life.

The name in this interview has been changed

National Family Mediation, The Chandlery, 50 Westminster Bridge Road, London SE1 7QY; Family Mediators' Association, The Old House, Rectory Gardens, Henbury, Bristol BS10 7AQ.

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