Mediation: who needs it?

The Lord Chancellor's new plans for 'non-adversarial' divorce will not suit everybody. Suzanne Glass reports
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Indy Lifestyle Online
CHRIS and Judith Howell were sleeping in separate bedrooms and leading separate lives. Their marriage was undoubtedly on the rocks. "I wanted out," says Judith, "but neither of us wanted to leave Lawrence. He was only two. And neither of us wanted to leave the house. Basically we had reached a total impasse. Divorce lawyers would have cost us an arm and a leg. I remember thinking we were doomed to live apart under the same roof." But then a friend mentioned the word "mediation" to Judith, and the ball towards separation and divorce eventually began to roll.

In separation and divorce mediation, husband and wife sit in the same room and haggle out agreements about their children, their finances and their property with the help of a therapist, a lawyer and a flip chart. The process was strongly advocated by Lord Mackay in last Thursday's White Paper on divorce. The paper set out the Lord Chancellor's intention to provide funds for the training of many more mediators and to avoid the bitter battles of the divorce courts as far as possible. If a couple comes to an agreement through mediation, divorce lawyers will be used only to fine-tune the agreement and to bring it before the judge.

So far, much of the debate about mediation has revolved around the question of whether it will make divorce easier or more difficult to obtain, and whether that is a good or bad thing. But in the moral maze, a more practical question is being lost. Is the mediation process going to be appropriate for most - or even many - of the thousands of couples who face the break- up of their marriages every year? Has Lord Mackay considered the possibility that sitting in a room with a person to whom you once said "I do", and discussing in a civilised manner who's going to keep the marital bed, might not be everyone's cup of tea?

"Let's talk about it" may be the fashionable and correct approach, but many people find it hard enough to discuss the details of their broken marriage with one divorce lawyer, let alone in front of a lawyer, a therapist and a soon-to-be-ex-spouse. This is quite aside from cases of physical violence: the wife with the black eye or the broken ribs, where even the mediators themselves say their service is totally unsuitable.

Jacky Klarfeld and Mary Kane work together as a team of qualified independent mediators with the Family Mediators Association. They are quick to point out that mediation is not the easy option and is often a very painful process, even for troubled marriages in which there has been no abusive behaviour. "We are prepared for the pain," says Jacky. "We always have a box of Kleenex ready. If someone gets really upset, I'll say something like, 'Look, I know this hurts. It's quite natural for you to feel like this. Would you like to have a break?' We do ask the couple how they got to the point of deciding to split up. But we don't delve into the emotional side too deeply. At the end of the day mediation is a practical process. It is not therapy."

Some may be able to shed a few tears and soldier on, but for others it can be potentially damaging to open wounds and leave them gaping without stitches.

James Thom, a barrister, and his wife, Terry, a librarian, have just finished mediation with Jacky and Mary after the break-up of their 18- year marriage. They did reach an agreement both on their three small children and their finances by the end of it, but James says there were times when the emotion aroused during a session got in the way of his everyday life.

"We sat there, me in one armchair, Terry in another, with Jacky and Mary on the sofa opposite us. When things got really tough I would switch off and count the number of science-fiction books on the shelves that I'd read. There were times when I thought Terry would have been happy for me to go and live like a monkey in a tree, and she felt I was saying 'I want, I want, I want'. After sessions like that I felt so wretched I couldn't do a thing for the rest of the day."

Judith and Chris Howell's mediation took place at the mediation centre in Bristol. Although their own experience was fairly amicable, Judith overheard a good deal of angst coming through the walls. "I could hear couples screaming and yelling at each other in adjacent rooms. I remember thinking, 'This might work for us, but it's clearly not for everyone'."

Jacky Klarfeld and Mary Kane say that if one or both individuals become too distressed, they will always suggest counselling or therapy, quite apart from the mediation process - as will mediators who belong to the National Association of Family Mediation. But couples may have no spare time or spare cash for counselling, in which case they are completely dependent on the skills of the mediators.

What of the children involved in mediation? "Part of the whole process is to bring the child's voice into it," says Jacky Klarfeld. "We want the parents to focus on the welfare of their children first and foremost. Sometimes, if a child is old enough, we will have a session or two with him and ask how he feels about things."

It cannot be a bad thing to listen to children's needs, but here again the child is asked to reveal emotions and then often left to deal with them alone. "We asked one little girl how she felt walking down her front path after she had said goodbye to her Mummy, and before she got into the car with her Daddy," says Thelma Fisher, Director of the National Association of Family Mediation. "She said she felt like a great nasty bird was going to come down and snatch her away, because during those few moments between Mummy and Daddy no one was with her." The mediators came up with a solution. Her father would collect her from school and not from the family home. But how was the little girl to deal with the emotions she had revealed to the mediators without any continuing form of support? Thelma Fisher says: "The parents were told she was feeling vulnerable, and it was up to them to help and support her."

Family mediation began in the Seventies as a voluntary profession. Currently, applicants for training with the Family Mediators Association have to have at least five years' experience as a family therapist or divorce lawyer, whereas the National Association of Family Mediation will consider applications from candidates who have a degree but not necessarily any formal experience of law or therapy. If mediation is to become a well- recognised and widespread profession, there will need to be much greater uniformity of qualifications and fee structures. Currently, independent mediators charge £120 per person per session (couples typically have from three to 12 sessions); while the National Association charges £500 per couple for the mediation package (from which mediators are paid £10 per session).

Although increasing numbers of men are applying to become mediators, there are still many more women in the profession. A divorcing man will often find himself in a room with his wife or partner and two female mediators. "I wasn't just the only man in the room," says James Thom. "I was also the only father, and they were all mothers." This is another imbalance which will have to be addressed.

At the moment couples present themselves for mediation entirely voluntarily (the White Paper does not recommend compulsion, though it is clearly the intention that mediation will become very much more common). Many of these self-selecting couples are enthusiastic. Terry Thom says it vastly improved her communication with her ex-husband. "I went in there hurt and a little hysterical. I thought, 'There is no way my kids are going to be exposed to my husband's new girlfriend'. But Jacky kept on talking about parallel homes and how it was important for the kids to see that their father had a stable set-up too. At first I hated the idea, but I began to come round to their way of thinking. I began to listen to what my husband had to say. It was odd. We hadn't communicated for years, and now we can just about talk."

Unlike the old system of his-and-hers lawyers, mediation adopts a total glasnost approach. No secrets are allowed between the parties, especially financial ones. "There was no way I could have stashed away a Swiss bank account," says Anthony Staines (not his real name). "You have to fill in a mountain of forms with details of every farthing you have." Actually, Anthony and his wife, Samantha, had few secrets, few possessions and there was little bitterness between them. They were an ideal couple for mediation - intelligent, reasonable people, aware of their own rights. Within three sessions, it was all sorted out.

Where couples may be less "reasonable", the outcome can be very different. Some divorce lawyers argue that since mediators are not there to represent the parties, but to act as unbiased facilitators, a woman coming to mediation from a weakened position within the marriage is never going to gain as much from the mediation process as she would if she went through lawyers. "Get a browbeaten wife going in for mediation and she'll think all she can ask for is the child and some grotty bedsit," says lawyer Ian Tysch. The old system may be "adversarial", but at least it allowed both parties to fight for their rights if that should be necessary.

Maude Davis, a senior divorce lawyer, calls mediation a "middle-class solution". At the end of the day it relies on everybody involved behaving like nice grown-ups. But that is not always what everybody wants, or is able - or even needs - to do. "You see," she says, "some people need to scream and yell and fight. There was one divorcing couple where both parties were hell-bent on the same crystal vase. So they agreed to come into the solicitor's office and to hire someone to smash it to pieces in front of their eyes. Not everyone can sit and discuss their break-up reasonably. Most people need to have a major ding-dong about it. Then they can walk away and get on with the rest of their lives."

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