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Reasons to be (more) cheerful: the outlook for mediation in lockdown

Date:28 MAY 2020
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Chief Executive, NFM

I’ve been gauging family mediators’ perspectives on the current state of play for our profession this past week.

It’s evident there has been a shift in outlook since I wrote my last Family Law article. Then I outlined the transitions mediators had been making in order to continue delivering their services, praising the spirit of collaboration that was developing between family law professionals.

That spirit remains, and indeed has strengthened, yet the difference is that as I write this, there is a genuine sense of cautious optimism for the future of family mediation. Let me outline three reasons for this:

Firstly, mediators and support staff have now broken through the initial pains of having to delivering services in a different way. Some of these difficulties were technological, couple by a resistance to change that is perfectly natural in a work setting. Others related to the challenges of balancing homeworking with myriad other domestic responsibilities.

Whilst it’s true these are no different from the ones experienced by workers up and down the country, I’m sure that mediators in our network have become convinced that lockdown has heralded systemic change, and will lead to what will be, in many ways, improved practice. Video conference mediation offers some benefits over ‘traditional’ face-to-face services, for example: appointments can be made quickly; exes don’t need to sit in a room together; offices don’t need to be hired; and travel costs are eliminated.

On the other hand, my discussions with mediators mirror some reservations about these methods, highlighted by the publication of the Nuffield Family Justice Observatory following its rapid consultation into remote family court hearings. There are legitimate concerns about the lack of in-person contact making it hard to read body language or to “communicate in a humane and sensitive way”.  So we mustn’t rush to throw the baby out with the bathwater.

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The second cause for optimism is a belief that lockdown will lead to more people seeking family dispute services. Each family breakdown sadly represents a number of people in turmoil, yet our professionals can and do help these people chart their paths towards brighter futures. If we look elsewhere in the world, it has been widely reported that China – the first nation to be affected by Covid-19 - is experiencing a surge in divorce applications. We are highly likely to have a similar experience here.

This reflects what family law professionals at home have long known – that there is a spike in business in January, after families have spent a great deal of time together over the festive period. To many, lockdown feels like a three-month family Christmas, without even the comfort of party hats.

The third reason to be relatively cheerful is, unlike the first two I’ve outlined, more in our own control.

The nature of enquiries we have been receiving since lockdown has been different. We are inundated, yet people are more tentative with their questions, seeking reassurance about the processes they will need to pursue. They suspect – or definitely know – they are now in the early stages of separation or divorce, yet are understandably hesitant to commit to life-changing decisions right now. Instead they focus on research, getting themselves well-placed to take action when some certainty has returned to their lives.

That’s where the calm professional attitude of staff is so important, increasing the likelihood these enquirers will come back to us - and why a positive future for mediation is in our hands.

I can’t imagine any reasonable person arguing this support is not vital, again emphasising the importance of families that are approaching crisis getting the right type of assistance at the earliest possible opportunity. Nobody pays for these lengthy initial conversations, and there can be as many as five or six calls with the same person.

This early intervention needs to be funded properly, ensuring the support is available before the family crisis deepens, and becomes more costly to the government.