Jan Ewing

The ‘child’s best interests’ as an argumentative resource in family mediation sessions

We used Discursive Psychology to study the claims and arguments which occur when ‘the child’s best interests’ is produced as a resource in family mediation settings. Analysis draws on data from three pairs of separated or separating parents attempting to resolve child contact or residency disputes through mediation. Our analysis focuses on the tendency of claims to the abstract notion of the child’s best interests to exacerbate conflict, especially as parents drew on conflicting research in this area. Changing expectations of fathering could be observed in the men’s argumentative positioning, and this was taken up in different ways by ex-partners and by mediators. Participants aligned themselves with mediators’ statements by picking up details of mediators’ language, hampering mediators’ attempted neutrality. The problematic nature of acknowledging the intensity of emotions in this process was also highlighted.

Experiences of FDRs

This chapter sets out our findings in relation to parties’ experiences of each FDR process, as well as the comparative assessments of FDRs made by parties who had experienced more than one process. Thirty-two of the parties interviewed had experienced only mediation, 27 had experienced only solicitor negotiation, and 25 had experienced both of these. Of the nine people who had experience of collaborative law, one also had experience of mediation and one party had experienced all three FDRs. In Chapter 2 we described the outlines of each process and previous research relating to each of the three FDRs. In this chapter we pick up many of the issues raised there, including parties’ levels of satisfaction with each process, what parties liked and disliked about the process, the role of the practitioner within the process, and how emotions and conflict were dealt with in the process. The chapter also discusses experiences of victims of domestic violence and abuse in solicitor negotiations, complementing the discussion of experiences in mediation in the previous chapter.

The Research Project

Our three-year empirical study Mapping Paths to Family Justice was conducted in 2011–2014 and funded by the Economic and Social Research Council (ESRC) (grant number ES/I031812/1). In 2009–10 when the Mapping Paths to Family Justice project was conceived, there was a widespread perception that the family justice system was in crisis, with diminishing resources available for courts and legal aid and increasing pressure on an already overstretched court system resulting in unacceptable delays. In this context it was hardly surprising that policy-makers should strongly encourage out-of-court resolution of family disputes. In 2010 the then Labour government appointed a board led by Sir David Norgrove to carry out a fundamental review of the family justice system, a process which was endorsed by the subsequent Coalition government which took office in May of that year. The Family Justice Review included the ‘guiding principle’ that ‘Mediation and similar support should be used as far as possible to support individuals themselves to reach agreements about arrangements, rather than having an arrangement imposed by the courts’ (Family Justice Review 2011a; see also Coalition 2010).

The Three FDRs

In the previous chapter we gave a brief explanation of the three FDRs which are the focus of this book: solicitor negotiations, mediation and collaborative law. This chapter traces the history of each FDR in England and Wales, including professional membership, training, organisations and regulation, developments in practice, and findings of previous studies. This material provides necessary factual background to our study and also introduces many of the earlier research findings which our study set out to test, to see whether they still held true. Previous research generally focused on individual FDRs. Ours was the first study to consider the three FDRs side by side and in comparison with each other.

Entering Family Dispute Resolution

Chapter 4 showed that for people experiencing relationship breakdown, their awareness and understanding of dispute resolution options was often serendipitous, in terms of what information they discovered before making a decision to approach a professional and which professional they consulted. In this chapter we examine the process of choosing to attempt one or other form of FDR, drawing on data from the national Omnibus survey and from interviews with parties and practitioners. These, taken together, enable a clearer picture to be drawn of the FDR routes offered and chosen and the drivers behind these choices. In particular, and in the bigger frame of the study, we were concerned to explore the ways in which different parties and cases were (or were not) being matched to appropriate dispute resolution processes. One key issue for the study was to examine whether those who would not typically be considered suitable for mediation, especially in cases involving domestic violence, were effectively and consistently screened out and referred on to a more appropriate FDR including, if necessary, to court.

Awareness of FDRs: The Policy Challenge

As outlined in Chapter 2, within the neoliberal policy framework, the exercise of autonomy through freedom of choice is a key justification for abandoning more traditional and welfarist approaches to many matters, including family dispute resolution. But at the same time, as we have noted, people with family law disputes are encouraged in various ways to make the ‘right’ choices about how best to resolve their disputes – preferably out of court, and ideally by mediation. However, both these positions assume a high level of awareness of the range of options available for out-of-court dispute resolution in general, and of family mediation in particular. Such awareness needs also to include an understanding of the nature of these processes – what they involve and aim to achieve. This has proved to be a perennial problem for policy-makers. Post-separation dispute resolution options are not something to which people tend to pay much attention when their relationships are intact.

Outcomes of FDRs

As outlined in Chapter 1, neoliberal policy developments concerning family dispute resolution have emphasised the importance of parties resolving their dispute out of court, ideally by mediation, but have demonstrated little concern with the content or quality of resolutions, beyond asserting that agreements reached between the parties themselves are likely to be more durable than those imposed by a court. It seems to be assumed that whatever parties can agree on will by definition be a ‘good’ outcome. This chapter sets out our findings on the resolution rates from each process, and proceeds to discuss the quality of resolutions in terms of parties’ satisfaction with the outcomes they achieved and their reasons for settlement. It also considers longer-term outcomes of FDR, going beyond the resolution of the immediate dispute. Finally, it discusses what happened in cases that were not resolved by FDR. In the following chapter, we discuss a further aspect of the content and quality of outcomes, that is, the extent to which agreements reached in FDR can be described as ‘just’, not only from the perspective of the parties and practitioners but also more objectively in terms of the conception of justice outlined in the Introduction.