Mediation In Family Disputes
| Published date | 01 September 1983 |
| Author | Simon Roberts |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02533.x |
| Date | 01 September 1983 |
THE
MODERN
LAW
REVIEW
Volume
46
September
I983
No.
5
MEDIATION
IN
FAMILY
DISPUTES
BEHIND
the present enthusiasm for
"
conciliation
"
in family disputes
it
seems at first sight possible to identify a simple and attractive idea:
that in many instances of family conflict it is desirable
for
the parties
themselves
to
arrive at some kind of agreed solution, instead of present-
ing the matter to a judge for his decision. Beyond that it is difficult to
isolate a consistent package of ideas associated with this movement.
There is no clear agreement as to what is wrong with present institutions,
or
as to the arrangements which should ideally supplement or replace
them. Sometimes, too, there is an uncertain
"
fit
"
between stated
objective and proposed solution.' When the embryonic institutions of
"
conciliation
"
now beginning to operate are examined, considerable
diversity is also observable. Perhaps all this should not be surprising,
for when we look back to the Finer Report,2 which many see as the
starting point of the movement towards
"
coilciliation
"
we find a large
plea
for
a new disposition, a fresh general approach, rather than specific
institutional prescription. Although the Family Court is carefully
described, the processes contemplated under the head
of"
conciliation
"
remain hazy. Even the recent Inter-departmental Committee, explicitly
required to report on
"
the nature
"
of existing agencies of conciliation,
has almost nothing to say about structure or the implications of different
institutional arrangements. Yet much of the present discussion takes
for granted agreement about the nature of institutional forms that have
never been worked out in detail, let alone submitted to serious
evaluation.
These uncertainties make it worth looking again at some
of
the ideas
which underpin contemporary discussion of conciliation and re-
examining the range of institutional forms which the various arguments
appear to contemplate.
At
present it appears that mediation will
become the dominant form of third party intervention associated with
e.g.
we
repeatedly find the call
for
settlement
of
disputes
by
private negotiation
coupled
with
a demand
for
a
national conciliation service, orgaiiised and financed by
government. See p.
555
below.
Reporf
of
fhe Conrmittee
on
One-Parent
Families,
Cmnd.
5629
(1974).
See the
Report
of
the Infer-deparfmenfal Commitfee
on
Conclliafion,
EMSO
(for
the
some kind
of
Lord Chancellor's Department),
1983.
There conciliation is defined as
structured scheme
or
facility
for
promoting a settlement between parties."
(p. 2).
537
M.L.R.-l
538
THE
MODERN
LAW
REVIEW
[Vol.
46
“
conciliation.” Already a number of agencies hold themselves out as
offering specialist mediation in family matters and have formed a
national association
4;
at the same time court Registrars in some areas
are now undertaking
“
mediation
”
on an experimental bask6 But
many different things are being attempted under the umbrella of
mediation, from general counselling and advice to detailed work on
specific issues; and approaches appear to differ from unobtrusive aids
to communication to pressure-laden directive intervention.
Despite the growth of a very large literature on negotiation, con-
tributed to by a number
of
disciplines, mediation has received sur-
prisingly little attention, often being treated as a minor variant of
bilateral negotiation. Such a view of mediation is misleading, for this
generic term has been used to cover several distinct forms of inter-
vention, some of them altering profoundly the shape which bilateral
processes might have taken. These differences need to be marked out
clearly before we can begin to assess the arguments for and against
mediation as one of the primary means of approaching family conflict,
or form any view as
to
the sort of attributes which “family
mediators
”
ought to possess.
I.
THE
“
IDEOLOGIES
”
OF
CONClLIATlON
Any examination of the literature on conciliation reveals that this
movement is sustained upon
a
rather diverse cluster of ideas, of varying
levels of generality, more often implicit in the arguments put forward
than openly articulated. Among these ideas the following appear
prominent: that family disputes should be approached in a spirit of
restraint rather than antagonism; that those in dispute should retain
responsibility for decision-making rather than surrender this to third
parties; that there are advantages in informality
of
process; that the
focus
of
third-party intervention should be upon relationships rather
than specific issues and vice versa; that outcomes should be founded
in
agreement and compromise rather than coercion
;
that the handling
of
disputes should be taken out of the hands
of
specialists; that there
should be a move from state ordering to private ordering, from a legal
to a non-legal world. It is at once clear that these ideas do not form an
internally consistent set,
or
represent a single ideology of dispute
management; nor do they point unambiguously in any particular
direction
so
far as institutional reform is concerned.
This absence of clarity about the institutional framework for concili-
ation is present
in
the Finer Report. There the idea of conciliation is
expressed in terms of two objectives: that family breakdown should be
dealt with in a quiet and restrained way, with the least possible bitter-
ness and
“
fighting
”;
and that wherever possible the parties themselves
should take primary responsibility for resolving their own dispute.
*
The
National Family Conciliation Council held
its
inaugural meeting on March
25,
G.
M.
Parmiter,
‘I
Dristol In-Court Conciliation Procedure,”
Law
Society
Gazette,
1983.
February
25,
1981.
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