Guernsey Law Review – February 2014
The Place for Mediation in Family Law
article contains a brief history of Jersey’s commitment to mediation and
notes the current position, including references to statutory provisions. It
compares Jersey with England and Guernsey and provides an analysis of
court-based outcomes and their shortcomings in comparison with mediated
outcomes, while providing a brief summary of each process. The accreditation
and training requirements for mediators are set out with some information on
the re-launched service known as Family Mediation Jersey. The continuing role
of a family lawyer in circumstances where mediation is routinely used is also
are many ways to resolve disputes from informal discussions at one end of the
scale through to full court proceedings at the other. Any process other than a
court-based solution is now commonly referred to as alternative dispute
resolution (ADR) and a quick glance at many large firms’ websites shows
how the term “dispute resolution” is now used for what was once a
litigation department. It is recognition that there are viable and beneficial
alternatives to court-based solutions, which are not always the best route to
resolution takes many forms some of which are, roughly in the order of their
• informal discussions
• friend/family assistance
• collaborative law
• negotiations with the assistance of
• formal arbitration
• the court process.
parties can resolve their differences with informal discussions they have the
skills necessary to avoid an intractable dispute. Sadly, many do not, probably
because of the unique challenges faced by parties in family disputes; as
relationships fracture, the parties’ ability to talk without rancour may be impaired. If the parties are still living
under the same roof, even greater friction may result.
4 The available options have
different characteristics and benefits and some will suit a situation, or the
parties, better than others. How the information about available dispute
resolution resources can or should be made available, is a moot point. Is this
a community or State responsibility, or a matter for the legal adviser?
Royal Court of Jersey turned its mind to such matters many years ago and, in
2002, a report “The development of Alternative Dispute Resolution in
was produced. This report addresses in great detail the issues referred to in
this article, which, in turn, provides an overview of the current position in
Jersey in relation to the place of mediation in a family law context. It is
interesting to note the first three points of the summary at para7—
following are the key recommendations in this report:
ADR. Jersey should adopt
a relatively bold approach to incorporating ADR into its legal system. This is
consistent with its broader ambitions for the legal system and its standing as
an international finance centre. Jersey can take
advantage of the lessons learnt in other countries.
Mediation. Mediation should be
the type of ADR on which Jersey focuses.
Time, investment and culture
Incorporating mediation will take time, and require commitment and investment.
It will have to involve a degree of culture change amongst stakeholders.”
did have a family mediation organization in the past which, regrettably, fell
by the wayside. Mediators who were trained moved away from the Island, or chose
not to continue. So, is there a need for such an organization now?
The family law
are some aspects of resolving difficult differences within families which are
particular to the family setting, the most obvious being the close relationship
between the parties, their children and the wider family. In the case of
children the parties must have a continuing parenting relationship irrespective
of their personal, one might say, “adult”
differences. The parties will, generally, already have a considerable amount of
knowledge about each other and his or her affairs. Also, it would be unusual if
there had not already have been a high level of contact between the parties
whether about the issue in dispute or other more mundane matters.
the time help is sought, there may already be a feeling that a court solution
is the only option because the parties’ positions may already be highly
polarized. Channels of communication are likely to have shut down and be at an
end, and one, or both, may feel that a mandatory court order is the only way
expression “parties’ positions” is used deliberately. In
resolving a dispute it is often helpful to bear in mind that it is the
parties’ positions that may be polarized rather than the people
themselves. In a family setting it does not take very long to see that whatever
their expressed position may be, and whether or not they consciously
acknowledge it, the parties will usually have much in common; notably, a wish
to resolve matters, a need for the children and each other to be provided for
and a need for the children to see both of them, to name the most obvious areas
of common ground, or common interest.
course, the devil is in the detail, and working out a solution seen as fair,
and therefore acceptable to both, is the aim of any dispute resolution process.
If either or both of the parties are left with a sense of unfairness it follows
that any agreement, or court order for that matter, can itself become a further
point of friction, undermining the whole outcome.
party’s position is dictated by history, background and life experiences,
and of course by his or her feelings. Their position may also be highly
influenced by advice from well-meaning family and friends, and, one hopes, any
legal advice they may have received. Most of the important influences in a
person’s life inform their decision making processes.
the family setting, it is very rare to find a person who expects no financial
settlement or no contact between children and both parents. Resolving a family
dispute is therefore a question of working out what is the most appropriate
outcome for those people in their particular circumstances. What will be the
most likely means to achieve a fair outcome supported by the parties, which
will therefore, hopefully, be a long term solution?
outcomes are usually a form of negotiated, or conversation based, solution
which may loosely be described as mediation. Mediation involves an independent
person facilitating the conversation/s between the parties enabling them to
speak up about their needs and fears and to reach an
acceptable solution. It is not a question of being obliged to compromise,
although they may choose to do so. It is more a question of coming to view
things differently and moving or changing position to a point where a solution
to previously highly contentious issues becomes achievable. Many meetings can
take place and parties can easily return at a later date to iron out any
outstanding issues. This provides time for a comprehensive agreement to be
reached, tested and reduced to writing. This flexibility is a considerable
strength of mediation in family disputes.
court-based solution results from a process driven by a rigid court timetable
creating the necessary structure to prepare a case to be heard by a judge. This
involves preparation of documents and gathering of evidence. A day is set when
evidence is presented to the court, legal argument takes place and the judge
decides what is to happen. The case is (usually) then at an end and the
court’s order cannot easily be amended.
family lawyers would agree that any court process is unwieldy, slow, of uncertain
outcome and incredibly expensive. This is particularly so in family matters
where the emotionally charged participants have a very personal interest in the
outcome. Most family lawyers would far rather the significant sums of money
spent on their services were retained by the parties for their mutual financial
benefit. There are many reported cases where judges criticize the amount of
resources spent by the parties in bringing matters to court. In a recent
Holman, J urged a couple embroiled in a dispute not to commit “financial
suicide”. The parties had already committed nearly one-quarter of their
wealth to the “highly charged litigation”. The authors of this
article have both experienced judges in Jersey making exactly the same point to
all the powerful foregoing reasons, in England and Wales ADR in family matters
gained official approval with the issue of the Family Procedure Rules 2010.
Rule 3.2 specifically imposes a duty on the court to consider ADR and Rule 3.3 provides
for when the court will adjourn existing proceedings or a hearing to enable ADR
to take place. Such statutory endorsement of ADR is illuminating in as much as
it provides a clear acknowledgement of the limitations of judicial solutions in
family matters and the beneficial aspects of ADR in this context.
has long shown a willingness to allow adjournments for negotiations, or
mediation, to take place, and, indeed, has often given judicial
encouragement to the litigants to follow that course. In Jersey the court now
has an “overriding objective” which is to deal with cases justly.
However there is no more guidance on the appropriate outcome, although the
Rules do at least go on to set out matters that the court must consider to
achieve this laudable aim—
“47 Overriding objective
(1) The overriding objective of
the Court is to deal with cases justly.
(2) Dealing with a case justly
includes, so far as is practicable—
that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways
that are proportionate—
ii(i) to the amount of money involved,
i(ii) to the importance of the case,
the complexity of the issues, and
the financial position of each party;
that it is dealt with expeditiously and fairly; and
to it an appropriate share of the Court’s resources, while taking into
account the need to allot resources to other cases.
(3) The Court shall seek to give
effect to the overriding objective when it—
any power given to it by this Part; or
(4) The parties must help the
Court to further the overriding objective.
(5) The Court shall further the overriding objective by actively managing
(6) Active case management includes—
the parties to co-operate with each other in the conduct of the proceedings;
the parties to settle their disputes through mediation, where appropriate;
(c) identifying the issues at an
(d) regulating the extent of
disclosure of documents and expert evidence so that they are proportionate to
the issues in question;
(e) helping the
parties to settle the whole or part of the case;
(f) fixing timetables or
otherwise controlling the progress of the case;
(g) making use of technology; and
(h) giving directions to ensure
that the trial of a case proceeds quickly and efficiently.”
matters relating solely to children in proceedings where there is no divorce or
where the parents have not been married, the court and the parties must take
into account the same overriding objective which in private law proceedings
includes the requirement to encourage “the parties to settle their
disputes through mediation, where appropriate”.
back and thinking about the importance of a final solution that will not fall
apart, it can quickly be seen that any solution mutually agreed by the parties
is likely to be a far better outcome. Should a court order suit or please one
party, it will almost invariably not suit the other. The more likely scenario
is that some aspects of the order will suit one party but different aspects
suit the other, or, an entirely possible outcome, that nothing in the order
will suit either, or both of them!
a court to resolve a dispute is exactly that—a choice, and a
relinquishing of a considerable opportunity to mould
the outcome to address one’s own position. A court can only make
decisions based on the evidence before it and its view of the person giving the
evidence. A further relevant point is that a court can only make orders which
it is empowered to do. In the family context, a court may not be able to make
an appropriate order even if that is what the parties would like, whereas in
mediation such a constraint does not exist.
seeking a court resolution may be an uncertain process.
has a low profile, which is not helpful to those in personal turmoil as a
result of family difficulties.
family mediation provided by a fully trained mediation service has its own
structure tailored very specifically for successful alternative dispute
resolution in the family context. The core principles are—
process is entirely voluntary; a party may withdraw at any time if he or she
feels the process is not meeting his or her needs at that time. This also means
that, subject to the other agreeing, the parties can return at any time.
(2) This is a process of self determination – no terms can or will be forced
on people if they are not in agreement. The process itself and the terms of any
agreement are driven, and reached, by the parties themselves.
if agreement is reached and both parties choose to have this converted into a
binding court order they take the terms of the mediated agreement to their
respective lawyers for this to be achieved.
(3) Subject to the caveat that no
confidentiality will attach to any disclosure about the wellbeing or safety of
children or adults at risk, this is an entirely confidential process.
(4) The mediator will not take
sides and will ensure that both parties have enough time and space to say the
things they want to say. The mediator will be and must remain impartial. It is
an important part of the process that if at any time one of the parties feels
that the mediator is not impartial, they will know, from the information
provided to them at the outset and throughout the process, that they must
address this with the mediator directly.
mediator will be a fully trained mediator. He or she will not be an expert and
will not provide legal or other advice. However, a mediator can and will
provide relevant information. Mediators are drawn from all walks of life, but
when mediating they will not be practising their
other profession or providing advice. A mediator will form an impression of the
circumstances of the parties but will always be impartial and ensure that the
process is handled fairly. The mediator’s personal views will not be
brought into the mediation, and are simply a part of that person’s
a mediator identifies that there is a need for any advice or further
information or a referral to another service, the mediator will say so and a
decision will be made by the parties as to how they wish to proceed. Through
his or her training, a mediator has knowledge of the range of possible court
orders and will use that information to assist the parties. For example, the
mediator will be able to explain about the valuation of pensions, property and
other assets, the relevance of inherited assets, and the range of possible
orders. The mediator will use this information to help the parties reach their
own decision as to an appropriate settlement.
people who may be very keen to resolve the dispute may believe that family mediation
is impossible due to the nature of their relationship with
their former partner or spouse. Domestic abuse is an issue that every mediator
is trained to recognize and to manage in the mediation setting. The mediator
will obtain all the necessary information to decide if the process can be
managed in a safe way. Mediators are very experienced in dealing with high
levels of emotion and can arrange practical ways to ensure the ability of
parties to undertake mediation in a safe way. Mediators will help a party who
has experienced an abusive relationship to speak out, will ensure that the
other party listens, and will assist the parties to say what they want or need
to say. Only by having this opportunity can a person freely join in the
discussion and make decisions for him or herself.
if the level of fear, or danger, is so high that a party cannot feel safe, or
where there is a risk of harm to others, family mediation may well not be
suitable. Warring parties should not be placed in a situation where their faith
in the resolution process itself may be damaged.
mediation may not be suitable for other reasons such as mental incapacity or
poor health. This is not a comprehensive list. Suitability for mediation is an
assessment undertaken by the mediator at the first meeting with each party.
Mediation can be halted at any time by a party or by the mediator should
something occur rendering the process inappropriate.
mediation, unlike the court process, is as flexible as it needs to be. There
may be only one session, or many. The length of each session will be governed
by whether the parties want to continue, or want a break to reflect, or need to
stop simply because it is very tiring. Sitting in a room with a former spouse
or partner can be very demanding, emotionally and physically. The overall
length of the process will be governed by the parties.
mediation can help to resolve disputes about children and/or financial
arrangements, if both are involved this is referred to as “All Issues
Mediation” or AIM. Wider family issues can also be suitable for mediation
such as disputes between children and their parents, between siblings
themselves, and issues about contact between minor children and their extended
relation to financial matters, a procedure called financial disclosure is
undertaken in exactly the same way as in the court process, so that any
agreement is reached on a fully informed basis. If an agreement is reached the
mediator will set out the terms in a document, a Memorandum of Understanding
(MOU), which remains private and confidential to the parties. Should the matter
not be compromised on the basis of the MOU and proceed to court, the MOU cannot
be referred to. The parties are advised to take the MOU to
their lawyers for advice. In contrast, the factual financial position is set
out in other documents which are not confidential. Those documents are also
seen by the lawyers who need this background information to provide their
advice on the terms of the MOU and these may be referred to in any subsequent
hope that it can be seen that family mediation is a very valuable and effective
alternative to court-based resolution of family disputes. This not only
benefits the parties involved but has a wider social benefit in that it reduces
the time and expense of providing court services. There are often other,
hidden, community benefits in the saving of time and expense by health and
welfare providers, and benefits to the education system through having fewer
are other well recognized, if hidden, benefits to the wider community of a
(1) It contributes to more
durable outcomes, generates greater mutual satisfaction and decreases the
likelihood of negative or harmful outcomes such as the escalation of conflict.
(2) The evidence demonstrates
that mediated settlements are longer lasting, and better protect the interests
of children than those imposed by the court in an adversarial process.
Furthermore, family mediation is usually less costly and encourages
communication between the parties. Two key reasons for using family mediation
(a) Client satisfaction. In their
study of client satisfaction in mediated agreements, Ellis and Stuckless indicate that mediation clients are more
satisfied with mediation than clients are with the processes of lawyer
negotiation, court hearings and trials.
They are heard, understood and participate in a process that provides for
(b) Benefits to children. The
trend towards mediation stems in part from parental dissatisfaction with the
adversarial approach to divorce. Numerous studies show that parents want to
structure their own solutions that are beneficial to them
and their children. Commonly parents feel that the use of the traditional court
process escalates conflict and distrust.
With early intervention the families benefited from lower levels of conflict,
greater paternal engagement and better outcomes. Families were more cooperative
and less likely to need other costly services.
In terms of the impact on children, studies indicate a clear pattern of better
adjustment for children with parents who cooperate and focus on their best
a family mediation service is able to secure the necessary government funding
to operate in a sustainable way, none of the benefits referred to above will be
realised, and mediation will be available only to
those who can afford the fees of a private mediator. Instead, it is likely that
the number of litigants in person appearing before the court will continue to
rise, resulting in extra costs and delays. This scenario will inhibit the court
from prioritising the cases which are not suited to
mediation. The failure to provide an opportunity for parties to consider a
non-adversarial alternative to a court hearing would be costly, both
financially and in terms of the emotional resilience of the parties and their
consideration of the considerable benefits to participants and to Jersey brings
us back to the question posed at the beginning of this article—“How
should alternative dispute resolution be made available? Is this a state
responsibility or purely a personal matter?”
this question has been answered because Jersey has already made the decision
that the provision of a Family Mediation Service is so important that it cannot
be left solely to a charitable organization. A working party sponsored by
Relate was set up in 1999 with the remit to create a family mediation service
to provide an alternative to a court resolution of family disputes. The Jersey
Family Mediation Service was established as a charity. Due to various
circumstances including issues concerning funding, the Service became dormant
in early 2012. The charity grasped the opportunity to look in depth at the way
a mediation service could be provided to the community. With generous financial
assistance from the Government of Jersey, premises and procedures for the
reinvigorated Service have been provided, and eight family
mediators have been identified and trained. The new Service continues to be
affiliated to the English National Family Mediation Service, which provided the
training for Jersey’s new family mediators. The new Service is called
“Family Mediation Jersey” (FMJ) and was launched in October 2013.
Guernsey already has a healthy mediation service which started in 2009. The
mediation service is part of the States of Guernsey Safeguarder
Services which is a Court Advisory Service. Safeguarder
Services ensures that there is a supply of trained mediators to enable the
service to flourish. There is constant demand for the service although this
fluctuates, as one might expect. The Guernsey experience shows a steady
increase in use of the service. It is expected that the same pattern will be
observed in Jersey.
continuing role for family lawyers
might think that family lawyers will become a dying breed. However, there are a
number of situations where a family lawyer will continue to be indispensable.
Family lawyers should continue to be the first port of call for advice by a
client faced with the breakdown of a relationship or difficulties relating to
children. Family lawyers may well provide information about Family Mediation
and other forms of ADR, as well as providing legal advice in relation to the
numerous issues surrounding the breakdown of a relationship.
should be alert to the desirability of putting their affairs in order before
commencing, or indeed during, a relationship. Such people will need legal
advice on a range of financial and legal status issues. Financial
considerations include cohabitation or pre-nuptial agreements, the joint
ownership and/or occupation of property, and making wills, to name but a few.
The continuing control of work and housing
brings additional difficulties, unique to the Island. The position of those
clients without the necessary status to live in a former matrimonial home is
before, obtaining legal advice and/or putting agreements in place before a
cohabitation commences or ends should be encouraged, particularly in the
context of complex family relationships. As an example, a child might clearly
expect to remain living with a step-parent, or parent’s partner, should
his or her parent die whilst the child is a minor, there may be nobody with
legal responsibility for that child.
40 Clearly, helping to resolve
such situations is part of the role of the family lawyer.
will always be clients needing advice and representation who have no choice but
to use the court system to resolve their dispute because ADR is for one reason
or another inappropriate. Where the parties’ financial affairs are very
complicated with, perhaps, trust or company interests, or where there are
difficult valuation issues, or perhaps where one party does not live in Jersey,
mediation may not be suitable and family lawyers will continue to play their
will also be clients who have already reached agreement and who need assistance
merely to finalise the terms of that agreement.
most obvious continuing need for family lawyers, in the context of family
mediation, is to complement the mediation process by providing advice and
guidance and in converting the terms of a mediated agreement into a form
acceptable to a court to obtain an order by consent. Clearly family mediators
cannot replace family lawyers. Family mediators cannot facilitate an agreement
to the point at which the terms become binding on the parties. Where divorce or
dissolution proceedings are required, it is likely that a family lawyer will be
used, as for a range of other court proceedings such as public law matters.
They will almost inevitably be involved in disputes arising from a breached
court order, or a broken agreement.
authors subscribe wholeheartedly to the philosophy of family mediation for
resolving disputes in the family arena, to complement, but not to replace, the
traditional rôle of the family lawyer.
Marian Whittaker was
called to the Jersey Bar in 1977 and has spent many years in general practice
but in more recent years has specialized in family law and private client work.
She was Chairman of the Jersey Family Law Association for many years during
which time she was involved in the review of family legislation and court
procedure on its behalf. She is a partner in LWR Law.
qualified as an English solicitor in 1980 and has practised
family law since then. Since 2004 she has worked in Jersey specializing in the
law of children and trained as a family mediator in 2013. She is an Associate
at LWR Law.