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Last updateTue, 24 Feb 2015 5pm

Switalskis

Switalskis

Andrew Baines explores the use of power in resolving issues arising from family breakdown

Family lawyers have a certain reticence towards talking about power when their discussions take place, either by correspondence or in court. Somehow it just doesn’t seem right that the welfare of a child should be intimately bound up with issues of power. However, wherever there is conflict about what is in the best interests of a child, where there is disagreement as to what a child’s welfare demands, that conflict is almost always resolved through the use of power. Power comes in a number of guises and it isn’t equally distributed. This article seeks to shed a little light on how power manifests itself in conflicts concerning a child’s welfare.

Andrew Baines considers dispute resolution in the post-truth era and how mediation can help parties find the right ‘truth’ for them

When people are looking to sort out their lives following a relationship breakdown, they often look to some kind of outside service to help them. As they make their enquiries both the legal process and mediation appear to be services that can be of help. Historically the legal process – solicitors – had been the first port of call. That is now starting to change as people become more aware of what mediation can achieve for them. In discussions, mediation is often brought up by way of comparison to the legal procedure. They each appear to have the same goal in mind: the resolution of a problem. Mostly they are compared on the basis of what actually happens if you get involved with them: mediation is user friendly, whereas the court’s process takes priority over its participants; in mediation you reach an agreement, courts order what is just and equitable; in mediation the outcome is decided by the participants, in court the outcome is decided by the judge; mediation is cheap, the legal process expensive. So why is mediation more Mary Berry than Brian Cox?

Andrew Baines looks at the conundrum of mediated agreements that may be ‘too good’ to work in practice

This article sets out my understanding of one major reason why a parenting couple can fail to follow an agreement they have come to in mediation. In a nutshell, the parties reach an agreement that, at the time, makes sense to them and meets their needs. However it places demands upon them that are beyond their day-to-day capacity to meet and so fails. How and why does this situation arise?

Andrew Baines assesses how complex adaptive system analysis can be utilised within the mediation process

Both mediation and complex adaptive system analysis are relatively new disciplines. Each seeks to make some sense of the area that lies between certainty and chaos. As the well-known quote says, ‘Life is not a problem to be solved but a mystery to be lived’. Family mediation looks at that area in family breakdown and re-creation. The purpose of this article is to enquire whether the insights complex adaptive system analysis has to offer may usefully be brought to bear on the practice of mediation.

Andrew Baines examines how coaching can assist clients dealing with relationship breakdown

It was on the Monday when the client sat in front of me with a look of ‘Why on earth do you think you can do anything to help me?’ It was a question I was finding difficult to answer. On the Tuesday she sat in front of me crying; not the best half-hour I’ve spent in my professional life. On the Wednesday we sat in front of the local district judge, the client sat on my right, her former spouse on my left, and the district judge opposite me. All seemed to be asking ‘why on earth do you think you can do anything different?’ I was beginning to get the message.

Andrew Baines considers the principles that underpin the choice between litigation and non-court dispute resolution methods

Court proceedings provide one way of resolving disputes but accessing this service involves complying with certain requirements. The service is not free, it is paid for in part by society through taxes and in part by the payment of court fees. However payment of the court fee alone doesn’t give access to the court services: in litigation he who pays the piper does not call the tune. A litigant agrees to comply with the rules and regulations of the court, even though those rules and regulations can be arcane and inaccessible to the average litigant. This is important because once within the court system a party can’t get out without permission, and if they fail to comply the outcome may be as extreme as imprisonment.

In the second of a two-part consideration of the role of the mediator and MIAMs, Andrew Baines highlights the advantages and disadvantages of mediation and the court process

Part one: 'Outlining options' (FLJ135)

Sometimes it is difficult to make a choice, especially where the options seem to be beyond compare. Consider choosing between a night out at the cinema or the theatre? They each have their advantages and disadvantages. But how do you choose between the excitement of the live performance over the perfection of the recorded image? Finding a common frame of reference usefully allows comparisons to be made. For example, if the common frame of reference is ‘which is nearest?’, you may get a different answer from the frame of reference which asks ‘where are we best able to obtain an insight into Shakespeare’s treatment of women?’ Similarly, a mediation information and assessment meeting (MIAM) needs to provide a common frame of reference if parents are to be able to assess the relative benefits and disadvantages of mediation and the court process. Further, that frame of reference needs to be acceptable to those awaiting the outcome of the MIAM – lawyers, mediators, arbitrators and judges.

In the first of a two-part consideration of the role of the mediator and MIAMs, Andrew Baines discusses the effects of the proposed children arrangements programme

As the child arrangements programme (CAP) seems likely (at the time of writing) to come into effect unchanged from the draft issued by Cobb J and his private law working group in November 2013, mediators will soon be invited to become an integral part of the court process on those matters where there are no issues as to safety and capacity. Their involvement begins with the mediation information and assessment meeting (MIAM).