British Journal of Social Work (2004) 34, 11611172

doi:10.1093/bjsw/bch134

Social Work and Child-centred Family Court Mediation

Greg Mantle and Alan Critchley
Greg Mantle is Senior Lecturer in Probation Studies, Social Work and Social Policy Division, at Anglia Polytechnic University in Chelmsford. He teaches on the Diploma in Social Work Programme and has research interests in service user perspective studies. Alan Critchley is Manager, Eastern Region, Children and Family Court Advisory Support Service, Colchester. Correspondence to Dr Greg Mantle, APU, Ashby House, Floor 2, Brook Street, Chelmsford CM1 1UH, UK. E-mail G.J.Mantle@apu.ac.uk

Summary
In April 2001, the Children and Family Court Advisory Support Service (CAFCASS) became responsible for family court work, including the provision of mediation services. Family court mediation offers a gateway for social work with children and families whose needs are largely left untouched by current services, and could thereby play an important part within the broader extension of prevention, early intervention, parenting and support services recommended by government. Over the past two decades, mediation has become a popular approach to reducing conflict and resolving disputes in a wide range of inter-personal, community and organizational settings. Given the professional interest that social workers have in helping their clients achieve more harmonious lives, the space for mediation would appear considerable and yet the connections between mediation and social work are, as yet, insufficiently mapped and analysed, in terms of both theory and practice. This paper draws on literature and recent research to review the relationship between family court mediation and social work. Keywords: Social work, family mediation

Mediation: meanings and contexts

As one manifestation of informalism, the shift away from bureaucratic, legalistic procedures, mediation has become a popular means of resolving disputes across a wide range of settings. Mediation can be understood: first, as a particular type of alternative dispute resolution (ADR), as one kind of alternative to adjudication; and, second, as something distinguishable from

British Journal of Social Work Vol. 34 No. 8 # The British Association of Social Workers 2004 all rights reserved.

1162 Greg Mantle and Alan Critchley

negotiation and arbitration, two other types of ADR commonly encountered. Negotiation involves the settling of a dispute by the parties concerned without external intervention, while arbitration includes a third party who listens to both sides and then takes a binding decision. It is therefore possible to position mediation within a conceptual framework of ascending degree of external intervention: negotiation, mediation, arbitration and adjudication. Mediation is concerned with assisting the parties to find their own settlement and a mediated agreement is thus, at least ostensibly, something in which both disputants might be expected to feel a significant personal investment. On the other hand, the agreement is not binding in any legal sense, in the way that an adjudicated settling of the dispute would be. Mediation may also be distanced conceptually from reconciliation, which entails the resumption of some form of previous partnership: mediation is concerned with helping disputants move on. In contrast, it is possible to treat mediation and conciliation as synonymous, and to view the preference more recently afforded to mediation as an attempt to avoid the potential confusion between the notions of conciliation and reconciliation. Mediation may now be found in a wide range of professional contexts: in primary schools, as a way of addressing bullying; in the field of criminal justice, bringing victims and offenders together; in urban and rural communities; in medical settings; in divorce and separation workfamily mediation; and in settling disputes within commercial and industrial sectors (for accounts of mediation in these various settings, see Liebmann, 2000). The development of dispute resolution theory and practice has been particularly marked within the field of organizational studies, linked to the longstanding debates therein around power, conflict, control and change (Burrell and Morgan, 1979; Turner and Weed, 1983; Jermier et al. 1994; Robbins, 1995; Morgan, 1997; Ackroyd and Thompson, 1998; Brown, 2000). Family mediation has two main forms: child-centred, which is concerned with assisting parents to make arrangements about, mainly, residence and contact for their children; and all-issues or comprehensive mediation, which also includes financial and property matters. Family mediation takes place in different settings and it is helpful to distinguish between in-court mediation, conducted on court premises, and mediation that occurs elsewhere. The Children and Family Court Advisory and Support Service (CAFCASS) is the agency responsible for the provision of child-centred, court-based mediation and this paper draws on empirical research to argue for an extended role for CAFCASS.

Mediation and social work

There are three key locations for the idea of mediation in social work discourse: first, as a part of generic, mainstream social work; second, as something undertaken by other professions, but about which social workers should

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know; and, finally, as a part of social work in specific areas of practice. As an aspect of generic social work, mediation is presented in four different ways, as: 1 2 3 4 one of the activities or tasks that practitioners undertakesee Thompson (2000, p. 31) for example; a method of social work interventionThompson (2000, p.66); associated with a level of practiceindividual, family, group or community (see Payne, 1997, p. 204); a method within a specific approach to social workaccounts of the systems model include many references to mediation; for example, Davies (1985) and Howes (1987, p. 58) descriptions of maintenance theory, and Paynes (1997, p. 151) account of ecological systems theory, associated with the work of Germain and Gitterman (1980).

The second major location of mediation in the social work literature is as something other professionals undertake, a responsibility shouldered by nonsocial work professionals, for example, counsellors, probation officers or independent mediators. Finally, there are two main areas where mediation has come to be regarded as a vital aspect of practice; first, in attempts to bring victims and perpetrators of crime face-to-face; and, second, in work with the children and families of divorce and separation. Mediation is both a central idea and key method of intervention within the burgeoning field of restorative justice (Strang and Braithwaite, 2000; Graef, 2000; Johnstone, 2001; Miers, 2001; Sullivan and Tifft, 2001). Its relationship with social work in the UK has become considerably attenuated since the recent transformation of the probation servicefrom a welfare to a control agencyalthough social work is still practised with victims of crime (Williams, 2002). Mediation and social work are also more at ease with each other in the realm of juvenile justice: mediation is an accepted principle and technique, upheld and employed, respectively, by social workers in Youth Offending Teams across England and Wales (Morris and Maxwell, 2001). Although a detailed exposition is beyond the scope of this paper, it is also important to recognize that the relationship between social work and restorative justice differs considerably from country to country: a much closer theoretical association, for example, can be traced in the United States (Galaway and Hudson, 1996) and Baldry (1998) provides a helpful account of the social work role within victimoffender mediation in Italy. Finally, the interface between conflict resolution and criminology has, to date, been insufficiently analysed, although the edited work by McEvoy and Newburn (2003) should provide much-needed impetus. The paper now moves to consider the second major area of social work practice in which mediation is to be found.

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Mediation in divorce and separation

In April 2001, the responsibility for family court work passed from the probation service to CAFCASS, a new central government agency incorporating the Childrens Branch of the Official Solicitors Department, the Guardian ad Litem Service and the Family Court Welfare Service. The intention was to cause minimum disruption to service delivery and, to this end, probation (family court welfare) service personnel simply became CAFCASS staff members on that inaugural date. Although a review of professional training and accreditation was soon underway, there was also a widespread recognition that the overwhelming majority of family court practitioners joining CAFCASS would possess social work qualifications and that the Diploma in Social Work would provide an acceptable foundation for professional practice. The provision of court-based, child-centred family mediation services has long been an integral part of Family Court Welfare Service work and this responsibility has now been transferred to CAFCASS. Although it is important to acknowledge the role of independent family mediators who are not social work trained (Parkinson, 1997; Roberts, 1997), it is still accurate to say that mediation, or dispute resolution, is delivered by professionally qualified social workers within a specialist practice arenafamily court workand that this is particularly so within the confines of county courts. Family mediation may thus be understood as an expression of social work in a particular area of practice and it is possible to make a similar association between social work and conciliationFawcett and Lewis (1996), for example, provide a chapter on conciliation within an edited work entitled Competence in Social Work Practice. A strikingly different picture emerges, however, once full account is taken of the history of family court work, specifically in regard to its longstanding association with the probation service. Until the arrival of CAFCASS and the concomitant divorce from the probation service, family court officers, now family court advisors, were mainly recruited from each area probation services pool of main-grade probation officers. To a degree, family work came to be seen as just another specialism within the probation service, alongside prisonbased practice and court liaison. This produced a distancing from mainstream social work and, as the worlds of probation and social work were pushed further and further apart by government during the 1990s, the pressure on family court practitioners to detach themselves from social work became all the more difficult to resist. Finally, it is important to draw attention to the part played by voluntary organizations in this area of practice and to consider the effects that this may have had on the wider relationship between mediation and social work. The Finer Committee Report (1974) had declared strongly in favour of conciliation but Government had been slow to provide tangible support and, as a result, it was left to enthusiasts from a range of professional backgrounds to develop services. A split between conciliation provided by (statutory) area probation

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services and voluntary agencies soon became apparent, with the first voluntary service being established in Bristol in 1978 (Liebmann, 2000, pp. 203). Today, the voluntary sector remains a key provider and overseer of services, with the UK College of Family Mediators, National Family Mediation, Family Mediation Scotland and the Family Mediators Association, respectively all having a high profile.

Family mediation and social work: compatibilities and tensions

James (1987) compares and contrasts social work and conciliation/mediation, concluding that, while a great deal of overlap exists, particular approaches to social workespecially the psychosocial modelare difficult to reconcile with the presumptions and processes of mediation. However, over the past decade, a much wider range of models utilized within family mediation has emerged and, as a result, comparing the two fields has become a good deal more complex. Parkinson (1997, pp. 825), for example, describes three different approaches: settlement-directed, therapeutic and transformative. Settlementdirected family mediation rests on the theory of principled negotiation and attempts to settle disputes in a rational and structured way. It affords little attention to issues of oppression, emotional aspects or histories of the dispute, and is therefore at odds with all but the most marginal manifestations of social work. Therapeutic mediation, on the other hand, acknowledges that there are other less tangible, but nonetheless, worthy outcomes to pursue, such as the reduction of anger and enhanced communication between parties in dispute. This model was initially developed by Irving and Benjamin (1995) and at its core is the idea that prior marital dynamics continue to shape the conflict that family mediation seeks to resolve. On the key question of problem definition, the therapeutic mediation model has since moved closer to the psychosocial approach to social work than perhaps James could have imagined:
It now seems clear that individual client definitions of the problem(s) cannot be allowed to stand as they inevitably foreclose the mediation effort. Instead, the mediator offers clients a solvable definition through reframing . . . that redefines the problem in mutual terms, but goes much further to offer them a model of parenting relations in divorce (Irving and Benjamin, 2002, p. 8).

Finally, transformative family mediation is concerned with the empowerment of the two parties in dispute. Folger and Bush (1994) were early advocates of this approach while, more recently, Winslade and Monk (2002) have developed a narrative model that places attention to power relations at the epicentre of family mediation theory and practice. As with therapeutic mediation, the transformative approach looks compatible with much of mainstream social work and it is fair to say in summary that recent developments within family

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mediation have moved it much closer to social work. Such closure, in terms of knowledge, values and skills, could pave the way for an expansion of work that crosses agency boundaries, the need for which is supported by the research findings to which the paper now turns.

The Essex study: child-centred family mediation

The aim here is to provide a brief outline of the research study, rather than a detailed description, for which the reader is referred to Mantle (2001a, 2001b). The Essex study is concerned with child-centred, in-court mediation that follows applications made by parents, or other carers, for orders which can be made under s.8 of the 1989 Children Actthat is, contact, residence, parental responsibility, specific issue and prohibited steps orders. The aim was to contact all parents/carers who had reached settlement at county courts over a 12-month period, and to invite them to participate in the research. Of the 722 individuals contacted, a total of 345 went on to complete a mail questionnaire, six months after their mediation meeting, giving an encouraging response rate of 48 per cent. In addition, background information was collected from departmental records: this provided opportunities to check the representativeness of the respondent group, to contextualize individual responses and to look for characteristics that might be associated with the persistence of the mediated agreement.

The children and families of mediation

Very little is known about the children and families for whom court-based family mediation is provided. Even basic information on the number of children in the family, their ages, special needs and contact with other welfare agencies is hard to find. Similarly, data concerning the parents and carers, their ages and whether couples had been married or cohabiting are absent. In fact, the Essex study is the first to collate such information, a startling revelation in itself. These findings have been reported fully elsewhere (Mantle, 2001a, 2001c) and the two following sections are therefore designed to examine particular aspects of the research especially pertinent to this paper.

Contact with social services departments

In the Essex study, some 14 per cent of families had at least one study child known to social services and 9 per cent had at least one child with an allocated social worker, while 1 per cent of cases included a child on the child

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protection register. Such figures suggest that mediators might need to consult with social workers in as many as one in seven of their cases. Also, in one third of cases, there was at least one other child (who was not the subject of the mediation) residing either with one of the parents or elsewhere. Although court records do not permit any conclusions on the number of these non-study children known to social services, it is possible to say that some were known and that, in some cases, the reported circumstances would give cause for considerable concern, for example:
Peters elder brother was removed from the respondents care in 1997 due to the respondents attitude toward punishment: Peters placement was considered at that time but he was never removed.

It would be wrong to give the impression that most mediation cases involving social services were child protection-focused, indeed there are references in the records to social work contact responding to the special needs of the child, including epilepsy, learning difficulties, chronic physical illnesses and sensory impairments.

Suffering in silence
In addition to the protective and special needs already identified, it is important to highlight the much wider category of needs of the children who find themselves within the mediation context. Children do not want their estranged parents to be in conflict (Warshak and Santrock, 1993) and there is plenty of evidence to suggest that post-separation conflict impacts on their well-being (Long et al., 1987; Stevenson and Black, 1995; Rodgers and Pryor, 1998). The Essex study provides many examples of parents in vitriolic, longterm dispute, where constructive negotiation and communication appeared to be entirely absent. To illustrate this point, consider the following accounts from two parents who participated in the research:
He turned up for the first visit and when I asked him why he had not written he replied I never said I would and then told me in no uncertain terms to shut up as he was not there to speak to me. Our son was very upset at his fathers tone and attitude to me, and . . . My ex-wifes attitude and vindictiveness has caused the present arrangements. I have tried every different approach but Im afraid I have lost the respect of my children and I fear I will never get it back.

Such levels of antagonism and suspicion are by no means untypical, and it would be difficult to imagine how any child involved could exist in such a milieu without suffering distress and unhappiness. Nevertheless, their difficulties are largely unrecognized, the expectation apparently being that parents should provide the necessary support to their offspring, in spite of research findings showing that parents, because of their own needs and

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interests, may not be best placed to do this (Mitchell, 1985; Rodgers and Pryor, 1998). Furthermore, many agreements reached at mediation failed to stand the test of time, with 21 per cent of those that did break down doing so within one week, leaving parents and their children perhaps even worse off than they had been before mediation. Clearly, a great deal of additional pain must be experienced in such circumstances and it is difficult to avoid the conclusion that insufficient attention has so far been given to the particular needs of the children and parents involved. Of course, this is not to argue that social services departments should or could be solely responsible for meeting the welfare needs of families in cases where mediation has failed: the point is that all statutory and voluntary sector organizations involved in this field should begin to recognize their plight. The assumption that parents in dispute can properly represent the interests of their children has been firmly challenged in the literature (Freeman, 1996; Mantle, 2001c), although the idea still appears to command a widespread acceptance in practice. Mediators do not act for the childthis was acknowledged by the White Paper heralding the Family Law Act 1996 (Lord Chancellors Department, 1995, c. 5.32)and, without a significant increase in resources, it is most unlikely that children will be more involved in court-based mediation than they presently are (Mantle, 2001c). If funds were to be made available to this end, children could make a direct contribution to mediation settlements and there would also be advantages in them, at least, knowing more about the agreement arrangements and how they had been reached (Robinson, 1999). This enhanced involvement might build on the successful use of family group conferencing in victimoffender mediation (Morris and Maxwell, 2001). However, this paper now turns to propose other, less-wellrecognized areas of further work for family court services.

Ways forward
In the context of limited resources and heightened public and central government concern with the issue of child protection, it is hardly surprising that social work childcare has been described as the service of last resort (Waterhouse and McGhee, 2002, p. 267). However, there are some signs that this is changing, following reviews of child protection and of child assessment practices (Department of Health, 1995 and Department of Health et al., 2000, respectively): certainly, there is a growing recognition that many children in need fall between the specialist provisions made by social services departments and mainstream health and education. A more proactive, preventative approach for social work with children is widely commended, based on partnership with families and other professions, and it is within this new frame of reference that opportunities for a much more vital social workmediation affiliation arise. Waterhouse and McGhee (2002, p. 285) advocate three major

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developments: first, the establishment of social work services available to all families experiencing difficulties; second, an enhanced role in assisting families gain access to child welfare and education services; and, third, the provision of parenting programmes and direct support to families. Family court mediation offers a unique gateway to early intervention, prevention and support work with a particular group of children and families in need, many of whom would otherwise be unlikely to receive services. Family court advisers, of course, are also concerned with children and families in other contexts, importantly, welfare report enquiries under section 7 of the 1989 Children Act. This offers a further opportunity for problem recognition and referral but the significance of the mediation gateway is that involvement is likely to be at an earlier stage in the familys dissolution. This is a time when patterns of interaction, communication and contact can be set and thence become very difficult to modify. At this early stage, non-resident parents may often allow a lengthy break in contact with their children, through guilt or from wanting to avoid conflict with their ex-partner. This hiatus may be understood very differently by the children concerned, perhaps as a rejection of them, and may therefore make the resumption of contact all the more problematic. The need for preventive intervention is crucial and could be a key aspect of family court practice. Families, of course, have alternative sources of help: kinship networks, voluntary organizations and health professionals may all play an important part. Contact with kin, arguably less extensive than it was twenty years ago, still remains a source of assistance and support for families with young children (McGlone et al., 1998, p. 29). However, it is important to recognize the detrimental effects that family dissolution may have on kinship networks and that this crucial source of help may not always be available. Again, family court social workers could play a crucial role: through the provision of support to parents; and, via the mediation of disputes, helping to sustain vulnerable kinship relationships. It is also important to acknowledge the fact that many families may be reluctant to approach statutory agencies, especially those linked so overtly to courts. Similarly, any involvement by social services personnel would need to be sensitized to user perceptions and concerns about child protection and authority (Hill, 2001; Sheppard, 2002). Locating support services within a local authority family centre might be one way of addressing this issue, although it might be better to seek a more neutral site, perhaps through partnership with an appropriate voluntary organization. Local three-way partnershipsCAFCASS, social services department and voluntary agency could both secure effective communication across organizational boundaries and provide a range of support and preventive services for children and their families. Such developments would also need to be seen against the back-cloth of policies that afford privileged position to the family and, indeed, a legal framework that lays such emphasis upon the notions of parental responsibility

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and minimum external interventionsection 3(1) of the Children Act defines parental responsibility, the principle being that a childs parents rather than the state have overall responsibility for their child, a responsibility that may only be lost if the child is legally adopted. For the families of separation or divorce, this focus on parental responsibility raises a major difficulty in that, while both parents retain overall responsibility, they may in reality not be able to agree on central issues concerned with the childs welfare. In such cases, the child may readily be perceived as being in need, according to social work principles, while such classification in terms of the law and the duties of local authorities may not be so straightforward.

Conclusion
CAFCASS can play an important part in helping raise public and professional awareness of the needs of the children and families of divorce and separation. Mediation offers an early vantage point in family dissolution, and there is more that family court practitioners could do. Although the main aim of court-based practice is the achievement of a settlement, a much wider range of approaches is now available to family court advisers and the relationship between mediation and social work has become closer. A partnership between CAFCASS, which has the access, the local authority social services department, which has the responsibility for children in need, and a voluntary agency concerned with children and families, to provide a safe, neutral setting, could offer a realistic organizational basis for the provision of much-needed services. Accepted: July 2003

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