Questions have been asked on ‘Whether Family Mediation falls into the general mediation or forms a different class of Mediation’? To answer the above-mentioned question, I invited Mr Joseph Omorere, a Masters degree holder in Dispute Resolution from Kingston University London. He is passionate about ADR and a qualified solicitor of England and Wales. Mr Omorere has practised for over nineteen (19) years in Immigration, Crime, Civil Litigation and Employment Law.
Keywords: Alternative Dispute Resolution, Family Mediation, Mediation, United Kingdom.
What is Family Mediation?
The concept of family mediation is different from that of general mediation. General mediation is where a neutral third party facilitate between individuals or between corporate or non-corporate bodies or between corporate bodies and vice versa to settle their disputes.
Conversely, as the name indicates, family mediation is about helping spouses resolve their differences or help to separate or divorcing couples sort out their disputes by a neutral third party known as a family mediator. The question that comes to mind is – who is a family mediator?
In simple terms, Family Mediators are trained to work with people whose relationships have broken down.
Scope of Matters Covered by Family mediation: It covers disputes over Contact arrangements, Residence and Parental Responsibility, Child maintenance, Property, Finance – savings, debts and pension.
Does Family Mediation fall within the Parameters of General Mediation?
Following the above point, it could be argued that the word mediation brings both family mediation and general mediation into the same forum. Still, care must be taken not to confuse both. The difference is the safeguards that are injected into the family mediation, which separates it from general mediation. For instance, in family mediation, the mediator cannot mediate where spouses or other family members are influenced by fear of violence that occurred during the relationship. Those kinds of safeguards are not there in the general mediation; parties could leave or stop the session at any time they wish to.
To reiterate, it is safe to say that family mediation safeguards are for protecting parties who have encountered domestic violence during their relationship or parties with unequal bargaining powers in terms of resources – one party having access to more money and the other party has little or nothing. So the safeguard protects the less privileged party. It is essential to point out that in family mediation and general mediation, each party will be informed about the availability of independent legal advice during the process.
The Issue of Domestic Violence:
One of the main reasons domestic violence, in most jurisdiction, cannot proceed or be mediated is where there is a history of domestic violence. In the United Kingdom, the government takes it very seriously; this is because bringing parties who have been damaged or been through domestic violence to face each other again is adding trauma and fear to that particular person’s life. Though Mediation is aimed at securing a more constructive approach to marital breakdown and divorce. Nevertheless, the UK government has made it a policy that where there is a history of domestic violence, mediation can not proceed.
What is the Consequence of this Determination for Potential Users, and Why does this Determination Matter?
The consequence of this determination for potential users and why it matters is that Mediation is available to spouses but not at every cost. Thus, the government policy mentioned above protects domestic violence victims; hence they have to be kept away from experiencing or coming into face-to-face contact with their abusers.
In essence, while Mediation is available to all, the reverse is the case for family mediation, particularly for the aforementioned categories who have been affected or damaged even through domestic violence.
Advice to Potential parties and Intending Users of Mediation:
We indicated that Mediation is a very practical, cheaper, and an easy way of resolving spouses’ issues rather than going through the rigorous process associated with litigation. For example, filling form E (UK Law) is quite extensive.
This essay provides an exciting opportunity to advance the potential users’ knowledge on the differences between Family Mediation and General Mediation while indicating the standard precursor to their similarities: the voluntariness of the process, its party-driven nature and neutrality of the process.
To hear the full version of episode 13 of EVA, click here.
Edgar v Edgar  EWCA Civ 2
Mary Hayes, Catherine Williams, Family Law Principles, Policy and Practice (2nd ed, Butterworths 1999) p.554
Family Mediation-Gov.Uk, Family mediation Sorting out family disputes without going through court courthttps://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/489124/family-mediation-leaflet.pdf
Nwokolo, Kingsley, To What Extent Is The Mediation Process Useful to a Victim Of Domestic Violence When The Dispute Is Over Finances/Children Upon Separation Or Divorce? p. 24