A Blueprint for Family Conciliation?
| Published date | 01 January 1990 |
| Author | Simon Roberts |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01794.x |
| Date | 01 January 1990 |
REPORTS
A
Blueprint for Family Conciliation?
Simon
Roberts*
The Report of the Newcastle Conciliation Project Unit’ appears at a moment when
arrangements for handling the aftermath of family breakdown are in transition. That
archetype of ‘informal justice’, the Family Court, still hovers in the wings. At the same
time, agencies
of
‘conciliation’ continue to appear in manifold forms, both in the immediate
vicinity of the courts and at a distance from them. Against a background in which both
the larger shapes and the local details remain contested, this Report brings one part of
the picture into focus, highlighting the questions which need to be answered and proposing
some positive solutions. Written following a careful survey which confirms unequivocally
the qualitative advantages of conciliation as consumers perceive them, the Report offers
clear advice on the kind of intervention which ‘conciliation’ should provide and its
appropriate relationship to adjudication. If the Newcastle team does falter, it is in the closing
moments of the game, when institutional arrangements are hurriedly sketched in. These
seriously undermine the clarity and coherence of the substantive proposals.
The Nature and Content
of
Conciliation
The Newcastle Report concludes that conciliation’s distinguishing feature ‘should be to
enable couples to retain control of the decision-making process consequent on separation
and divorce, encouraging them to reach their own agreements’ (para
21.19
at p.
358).
So
for the authors of the Report conciliation should essentially be directed towards the
orchestration of
decision-making; the parties
are
so
far as possible to retain control over
decisions; and these are to be the product of
joint
agreement.
Thus the procedure
contemplated by the fugitive label of ‘conciliation’ is firmly identified as mediation, a
mode of intervention in respect of which there is a known and established practice, a large
literature and proven training models.
At
first sight this seems a welcome, uncomplicated
proposal, unlikely to attract criticism or dissent. If the core content of conciliation is seen
to be the management of negotiations, a corpus of theory and practical experience lies
readily available for adaptation to the specific conditions of joint decision-making in the
context of family breakdown. There is no need to fumble around in less well-charted fields
of practice; improvisation becomes unnecessary. This spare model of joint decision-making,
with its emphasis on party control, its modest role for intervening third parties, and its
insulation from court processes
(see
below),
also
promises to circumvent some of the hazards
identified by the critics of ‘informal justice’.*
Despite the simplicity and apparent good sense of the proposals, they are likely to prove
controversial. In identifying conciliation with mediation, the Report explicitly takes sides
in a long-standing but largely concealed quarrel within the conciliation movement as to
*London School
of
Economics.
1
Report
ro
rhe Lord Chancellor
on
the Costs and Effectiveness
of
Conciliation in England and Wales,
Conciliation Project Unit, The University
of
Newcastle upon Tyne, March 1989, price f7.70.
For
a
discussion
of
the Report’s methodology see the article by Anthony
Ogus
er a1
at
p.
57 above.
Richard L. Abel,
The Politics
of
Informal
Justice
(New
York:
Academic Press, 1982); Jerold
S.
Auerbach,
Jusrice without Law?
(New
York:
Oxford University Press, 1983).
2
The Modem Low Review
53:
1
January
1990
0026-7961
88
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