Court proceedings are not the only option – and need not be the default – to resolve disputes within a family. Mediation can help resolve family issues more amicably in a less stressful environment, and can often be faster than going to court.

Philippa Johnson is a Family Mediation Council Accredited family mediator with more than a decade of experience, working alongside Sheila Turner at Turner & Johnson Mediation. She is also a board member and former Chair of the Family Mediators Association.

In this interview, partner Toby Atkinson speaks to Philippa about her role as a family mediator, the benefits of the process and the effect Covid-19 has had on her work.

How did you become a family mediator?

Having worked most of my life as a family law reporter (and being married a family lawyer for good measure), I often found myself fielding questions from friends and acquaintances about their family breakdowns. I realised that I was increasingly advising them to look at alternatives to going to court, because the legal approach simply could not address every issue they faced.

After speaking to several family mediators and with lots of encouragement from family lawyers (especially Helen Ward and Lord Wilson), I reorganised my life and joined the growing community of professional family mediators.

What is the role of a mediator?

A mediator’s role is to help people to have a difficult conversation about how to resolve important issues between themselves. These conversations require an enormous amount of work from the people involved. Although this might seem very daunting, it does seem a bit odd to ask lawyers to resolve important family issues without making some attempt to talk them through first as a family, with active support from professionals used to dealing with these issues.

The mediator is there to facilitate and support that difficult conversation – to provide a calm, neutral and safe space, a structure for the conversation, and clarity about what is and is not going to happen. The mediator will listen to what people need to say, ask thought-provoking questions, and encourage everyone else involved to ask questions and to listen.

People are rarely at their best when they separate and there is a good chance that everyone in the family is in ‘flight or fight’ mode. Mediators therefore focus on encouraging better communication between family members. We also often play a key role in inviting people to think about what they want in the longer term, encouraging them to make their choices on the basis of those goals.

There are various aspects of a relationship breakdown in which a mediator can help parties reach a settlement. Could you give a brief summary?

Mediation involves working out what the family’s options are, which usually gives everyone in the family a better sense of the real choices to be made and the advantages and disadvantages of each specific option. It also helps them to focus on working creatively together to find a way forward that will work for everyone, most especially the children.

Mediators also help by giving everyone involved an opportunity to tell their own story and to hear other perspectives. Really listening to the other person can be both healing and informative. Areas of disagreement are important but can often seem less so once they are clearly defined and the different perspectives understood. Areas of agreement are even more important and can often be rediscovered and given fresh impetus.

It is crucial to give a voice to any children in the family before attitudes have hardened, and child-inclusive mediation is a good way to do this. Research suggests most children want to contribute their ideas before decisions are made about them, and that parents significantly underestimate the impact of divorce and separation on their children. Parental conflict is the single most difficult issue for many children and they are often extraordinarily wise in such situations.

You work as a team of two with Sheila Turner, rather than as a single mediator. What are the benefits of this approach?

I have a legal background, while Sheila has a therapy background. Although in the mediation space we are both professional family mediators (and do not think of ourselves as a ‘lawyer mediator’ and a ‘therapy mediator’), having real expertise in these different areas is useful. More importantly, having two of us working with the family means that we are better able to help, both of us providing support and both of us alert to what is happening.

How has the pandemic affected your work? Have you seen an increase in the number of couples turning to mediation?

Yes. Before spring 2020 we were busy with a mix of in-person work and some online, mostly for families based abroad. Lockdown shifted us almost overnight to nothing but online mediation, and we saw a significant increase in families asking us for help.

Although we are now offering in-person mediation again, the vast majority of our work remains online in 2022 and there is no sign of a reduction in cases. There are both positives and negatives about this way of working, but our clients seem to like the greater flexibility that online sessions provide.

As the family court system moves towards greater transparency, and with a backlog following years of overburdening made worse by the pandemic, do you expect to see an increase in couples mediating?

The trend for families to use mediation rather than litigating is very likely to continue. Litigation that runs on for many years is costly both emotionally and financially, and given that the courts seem increasingly prepared to publish the names and many of the private details of families involved in financial litigation, some families are also very attracted by the complete confidentiality offered by mediation.

However, both families and mediators need to be careful about the pull of mediation in the context of a struggling family justice system. An impulse to mediate born solely of frustration and fear of the alternative has some serious drawbacks. When it works, mediation is quicker and less expensive than the alternatives, and it is usually worth trying mediation where that can be done safely. But families trying to mediate need to commit to having a real conversation, fully aware that unless they can find a way to work together as equal participants, nothing useful is going to emerge.

How do you respond to the perception that agreeing to mediate is somehow ‘weak’ or seen as a form of capitulation?

Oh, the power of language! Mediation does usually involves compromise – which is a much more relevant and responsible word than capitulation in this context – and many are quick to reject the idea of compromise, which is indeed associated with ‘weakness’ and mutual dissatisfaction. But I would argue that almost everyone I know compromises every day, both at work and in their personal lives – and that such compromise is essential in order to lead a fulfilled, productive and happy life.

The concept of legal ‘justice’ can be very unhelpful to people going through family breakdown because, for many, the idea of court implies a ‘winner’ and a ‘loser’. As you know, that is simply not what happens in reality. The court’s job is to find a ‘just’ resolution to a specific issue and family court decisions are themselves usually a compromise.

People who go through divorce and separation hoping to ‘defeat’ the other person are likely to be disappointed, whether they try mediation or not.

What advice do you have for couples considering, or going through, a divorce?

Take it one step at a time – do not try to tackle everything at once. Start by thinking about who is going to provide you with the support you need. Many people need a trusted professional – a family mediator, specialist family lawyer, therapist or divorce coach. Most people also need a personal network of people who care about and will support them in other ways.

Give yourself time and space to learn about and consider your options, with advice from professionals and support from your personal network. Once you have thought about what the main issues are for your family, decide how you personally want to tackle them. Don’t reject any approach to resolving an issue until you have talked it through. Mediation will not necessarily be the right way forward for your family, but if you decide not to try it, make sure you know why you think it is not right for you.

Be prepared to think flexibly and be open to ideas. Once you have the image of the future you want in your head, focus as much as you can on how best to make it happen. That often means putting up with something you do not like now (the cost) in exchange for what you want to achieve (the change).

Finally, do your best to be as kind as you can be – to yourself, your children and your ex-partner, even in the face of unkindness. Kindness is not a form of weakness, it is one of the most powerful tools anyone ever uses. Aim to be the person you would like to be – and perhaps even more importantly, the person you would like your children to be.

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