January 24, 2025 • 45 mins
Join us for an insightful exploration of whether mediation can be appropriate for cases where domestic abuse is present as we welcome our guest, family lawyer and accredited mediator Elaine Richardson, who has a wealth of experience as a trauma-informed lawyer. Gain a deeper understanding of how psychological, economic, sexual, and physical abuses manifest, and learn effective strategies to support victim survivors through these challenging circumstances.
Elaine Richardson
I am a family law solicitor, collaborative lawyer and accredited child inclusive Hybrid mediator. I supervise other mediators as their Professional Practice Consultant (PPC) and I supervise family lawyers as their Family Law Supervisor. I am a trainer and presenter specialising in domestic abuse, safeguarding, trauma and high conflict. I run my own business called Richardson Family Law.
I am a member of the national non-court dispute resolution committee for Resolution. I’ve been a member of Resolution for over 25 years. Resolution is a community of family justice professionals who work with families and individuals to resolve issues in a constructive way. We have a membership of about 6,500. I was recognised nationally as the winner of the prestigious John Cornwell Award in 2019 by Resolution.
I have been trained by the High Conflict Institute of America to conduct mediations involving high conflict and I have also been trained by the HCI as a mediation coach to prepare and support people going into the mediation process. I work for the charity shared parenting Scotland in this role.
I am a trauma informed and skilled lawyer trained by The Scottish Law Society.
https://richardsonfamilylaw.co.uk/
Tamsin Caine
Tamsin is a Chartered Financial Planner with over 20 years experience. She works with couples and individuals who are at the end of a relationship and want agree how to divide their assets FAIRLY without a fight.
You can contact Tamsin at tamsin@smartdivorce.co.uk or arrange a free initial meeting using https://bit.ly/SmDiv15min. She is also part of the team running Facebook group Separation, Divorce and Dissolution UK
Tamsin Caine MSc., FPFS
Chartered Financial Planner
Smart Divorce Ltd
P.S. I am the co-author of “My Divorce Handbook – It’s What You Do Next That Counts”, written by divorce specialists and lawyers writing about their area of expertise to help walk you through the divorce process. You can buy it here https://yourdivorcehandbook.co.uk/buy-the-book/
To learn more about our podcast sponsor Ampla Finance – access their product guide here: https://bit.ly/3Ieqmuc
Or complete enquiry form https://bit.ly/3W4J7pz and one of the team will be in touch.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Tamsin Caine (00:06):
Welcome to series 10 of the Smart Divorce Podcast.
During this series, we're goingto be speaking about the
difficult subject of domesticabuse.
Unfortunately, during my work,I come across people who are
victim survivors of domesticabuse on a far too regular basis
.
So we're going to be talking tothose who have survived
(00:30):
themselves, to professionalsworking in this area, to
solicitors, to hopefully helpyou to find the right support if
you're in that situation.
This is an issue that's notgoing away.
So if you're going through thisor you know anybody who is, I
really hope this series helpedyou.
Thanks for listening.
(00:55):
Hello and welcome to today'sepisode of the Smart Divorce
Podcast.
We are releasing this duringFamily Mediation Week in January
2025.
If you're listening to it laterthan that, it doesn't matter,
but I wanted to talk, as part ofthis series on domestic abuse,
to the fabulous ElaineRichardson all about how
(01:18):
mediation can be used indomestic abuse situations.
So welcome, Elaine.
Thank you for joining me again
Elaine Richardson (01:25):
And thanks fo much for having me again
Tamsin Caine (01:27):
Shall we start off ?
Would you !undefined tointroduce yourself and perhaps a
little bit about why I knew youwould be the perfect person to
talk about this subject?
Elaine Richardson (01:39):
Okay, so by background I'm an experienced
family lawyer.
In my past life I have donelots of litigation, so
represented individual clientsand taken them through their
divorce journey or theirseparation journey.
As part of that, I'mcollaboratively trained.
That means I can sit down withanother lawyer and a separating
(02:03):
couple and talk about reachingagreement.
I'm an accredited mediator, sothat means I've done a portfolio
type exam to get myqualification and I've been a
mediator for some time now.
I'm also child inclusive, whichmeans that I can speak to
(02:25):
children individually if that'srequired.
I now am a trainer, so I trainother lawyers and mediators and
I also supervise other lawyersand mediators in their practice
so that they have a reflectivepractice, that they have a
(02:46):
reflective practice, and one ofthe areas that I specialise in
is domestic abuse andsafeguarding and also high
conflict personalities, and I'vedone some of my training with
the High Conflict Institute ofAmerica.
I present the domestic abuseand safeguarding course for um,
a member organization calledResolution, which used to be
(03:09):
called the Solicitors Family LawAssociation.
Um and um
..
and I, I guess, most recently,which I think is also incredibly
relevant to this topic you'vegained a particularly exciting
(03:30):
qualification.
Well, it's exciting for me.
It's exciting for me too
Tamsin Caine (03:36):
And I think it's useful, massively useful, for
people who are victims andsurvivors of domestic abuse to
understand a little bit aboutthat qualification.
Could domestic abuse tounderstand a little bit about
that qualification.
Could you tell us just a littlebit about ?
Elaine Richardson (03:48):
.
Um, so I'm a qualified nowtrauma-informed uh lawyer.
I did that qualification withthe Law Society of Scotland.
Um, it's a hugely popularcourse worldwide.
So I was.
I did the course with delegatesfrom as far afield as Australia
and Canada.
I think probably there's ashortage of this type of course,
(04:12):
but I think the reason it'simportant for victim survivors
of domestic abuse is that theywill be in a traumatized state
most likely.
Very often they will havepost-traumatic stress disorder,
even if they don't necessarilyrealize it, and, of course, the
(04:34):
terrible thing is they might noteven realize that they're in an
abusive relationship.
So being trauma aware andtrauma informed is just so
important because it has animpact on the way that I meet
with people and hopefully itenables them to have the
(04:55):
confidential conversations withme that they need to have.
Tamsin Caine (05:01):
Such a vital and useful qualification.
It's such a shame there'sthere's so few people qualified
in it and that obviously there'sa massive calling for, uh, more
of these courses to to be run.
So we're gonna, we're going tostart off and talk about um,
about mediation and about someof the ways in which you see
(05:25):
victim survivors.
I want to appear in front ofyou.
It feels like there's some sortof magic going on.
No, the way they present.
The way they present absolutely, because I guess a lot of the
people I work with, and I'm surea lot of the people you work
with, aren't necessarily awareof the abuse that they've been
(05:48):
experiencing or to the levelthat they've been experiencing.
So could you just tell us alittle bit about how they
present to you and how you, Iguess, pull on the the string to
sort of help it to unravel andbe more aware of it.
Elaine Richardson (06:08):
It can be really tricky.
Most people that I meet are notgoing to start the conversation
by saying I know that I'm thevictim, survivor of domestic
abuse, and so some people havemore awareness than others.
And of course, the difficultywith domestic abuse is it can be
(06:32):
quite subtle and difficult tospot.
So if I just start by sayingthat all domestic abuse is based
on a framework of coercive andcontrolling behavior, sometimes
known as CCB.
But this coercive andcontrolling behavior is the
(06:54):
basis for all domestic abuse.
Now it then might show itselfin different ways.
So it might show itself asphysical abuse, which is what
we've been well aware of formany years now.
The coercive and controllingbehavior might show itself in
economic abuse, which we'regetting more information,
(07:17):
knowledge about, and it's suchan important area and there's a
fantastic report actually thatResolution have done fairly
recently about economic abuse.
I can see you nodding.
It really is fantastic.
I send it out as a resourcevery often for my clients.
So the coercive and controllingbehaviour can also show itself
(07:38):
as sexual abuse, psychologicalabuse, but if you just go back
to it, it's always based oncoercive and controlling
behavior.
I think that's a good guidelineand if I was to give you a
description of coercive andcontrolling behavior as a sort
of one sentence, I'd say thatit's behavior that's designed to
(08:00):
entrap somebody in arelationship.
Okay, so it's about trappingsomebody in a relationship and,
of course, if it's very subtleand manipulative behaviour, the
victim-survivor may not realisethat they are being trapped.
So that's where some of thesubtle aspects can be more
(08:23):
difficult to spot, and I thinkthat's why, historically, we
talked about domestic violence,because that was the thing that
was easy to spot.
You know, you could spot theblack eye and the broken arm and
whatever.
But I think that as time hasgone by, we've become much more
aware of the basis for alldomestic abuse being coercive
and controlling behaviour, thebasis for all domestic abuse
(08:47):
being coercive and controllingbehavior.
So it might help then if I justsay a little bit about the
cycle of abuse, because I thinkthat that can be really a
helpful thing to describe.
So what very often happens isthere's an incident, an episode
of abuse.
It doesn't have to be high risk, it doesn't have to be physical
, it can be in many differentforms and then it usually
(09:16):
escalates as the relationshipprogresses.
There's a honeymoon period thatfollows the incident, so the
perpetrator may make promises tochange, give gifts, love,
bombing, denial, blaming,spending time together,
bargaining, and of course thatthen creates hope for the victim
survivor that maybe things willchange and the perpetrator will
stop their abusive behavior.
(09:37):
Then what tends to happen istension rises following the
honeymoon.
There's a shift in the behaviorof the perpetrator.
They stop following throughwith promises of change and
there's a mood shift and thevictim doesn't know where they
stand and their survivalresponses will peak.
(09:59):
They may change their behaviorto try and appease the
perpetrator, their behaviour totry and appease the perpetrator.
This is often described to meand other domestic abuse experts
as walking on eggshells.
You'll hear people talk aboutthat.
They don't know where theystand.
They're walking on eggshellsand this is the cycle and it
continues for as long as therelationship lasts, and usually
(10:22):
what happens is the periodbetween each stage shortens with
the risk level increasing.
So eventually some victimsurvivors report that there was
no honeymoon period and ofcourse, the other important
thing to say is that risk is atits peak at the point of the
cycle being broken and therelationship ending
Tamsin Caine (10:47):
We've talked a lot about post-separation abuse and
and that is that is, um, at thepoint where a lot of people
find it's even more um full-onthan it than it was during the
relationship, even though youknow we regularly hear people
say, oh well, if that's whatyou're experiencing, why don't
(11:07):
you just leave?
We know that the why don't youjust leave is not as simple and
straightforward as that, becausethe entrapment that you've
talked about, and also that theleaving is, is where the, the
abuse becomes even even stronger, isn't it?
Yes, it can be.
Bearing all that in mind, whenyou meet with a client, a
(11:32):
potential client or client, how,how we, how do you go about
asking them the right questionsto try and understand whether
there's been an abuse in withinthis relationship?
Obviously, not allrelationships that come to an
end have abuse, but we do needto kind of start fishing a
(11:53):
little bit to see if that is thesituation.
Elaine Richardson (11:57):
So at the outset, I say that the most
important thing to me is to keeppeople safe in whatever way
they work with me, and that,sadly, I know that abuse occurs
in relationships and some peoplejust simply have worries for
(12:18):
their own safety.
So I say that we will bespeaking about this during the
meeting.
So I say that we will bespeaking about this during the
meeting.
So it's the first thing I say,apart from hello and welcome.
It's the first thing I say.
And I also say to people thatI'm really aware that some of
(12:39):
the conversations that we havein these meetings can be
upsetting and that people canget very upset because what we
speak about may be upsetting andthat, although I'm fine to
carry on, I want them to be okay.
So I ask them if they will letme know if they need a break,
and that's very much an elementof trauma informed practice of
(13:03):
flagging that up right at thebeginning and giving people
choices, absolutely.
Tamsin Caine (13:08):
And would this be in a meeting with each party
individually, or wouldn't be ina meeting at this point?
Elaine Richardson (13:17):
This is when I very first meet with people,
so I meet with them for anindividual pre-mediation meeting
.
So it's important that I get itright from the outset and set
the scene.
But that continues because if wethen decide that we are going
to have a mediation meeting withall three people present, they
might be sitting in separatebreakout rooms, but I'm still
(13:40):
assessing and enabling them tospeak to me confidentially.
I'm still assessing risk.
So I suppose that's anotherimportant, really important
point to make is this fluidityof risk that I know you and I
have spoken about, and this cannever be a tick box exercise at
the beginning of a relationshipwith a client.
(14:01):
It has to run like a threadseamlessly throughout the work
that you relationship with aclient.
It has to run like a threadseamlessly throughout the work
that you do with the client.
Because, as I said before, themanipulative behavior of a
perpetrator may be reallydifficult to spot and in fact
you may not spot it veryoutwardly until perhaps you've
(14:23):
explored some options forsettlement and it doesn't align
with what the perpetrator thinksshould happen, and then you
might see a different side tothem, because of course
perpetrators of abuse wear masksand so they might only be
showing you at that point themask that they usually put on
(14:46):
when they're meeting otherpeople.
Tamsin Caine (14:49):
Absolutely.
You know that mask candefinitely slip, can't it?
I think the other thing that'sworth saying is that when people
come to see us, even if they'vebeen in an abusive relationship
, that's become normal to them.
What they've lived and breathedmight have crept up very subtly
(15:13):
, might have come upon them and,because it's their world, their
normality, they may notrecognise it as abusive
relationships.
So, even if we're saying we'regoing to talk, you know we're
going to talk about it.
There may be things that areupsetting.
They may not be upsetting untilthere becomes a point where
(15:35):
suddenly they go oh, that that'sme.
I've just realized that, thatthis has been happening to me
and that actually my reality, mynormality, is not what I
thought was everybody else'snormality, and that can creep up
on people.
(15:55):
So, as you talked about thefluidity of risk, it's it's so
important because they're notnecessarily coming to see you
recognising their status.
Elaine Richardson (16:05):
Absolutely, and that happens to me
frequently, and I give theanalogy of boiling a frog.
So if you put a frog into hotwater, it helps you to remember
it.
If you were boiling a frog andyou put a frog into hot water,
it would leap out straight away,wouldn't it?
Whereas if you put a frog intoa pan of cold water and you
(16:28):
slowly turned up the heat, thenit's far less likely that the
frog will realize that it'sbeing boiled.
I've met with some absolutelyamazing people who are holding
down incredible jobs, veryresponsible jobs, and when they
understand that they're actuallyvictim survivors, which they
(16:51):
hadn't appreciated, it's aterrible.
It floors them completely.
As you can imagine, it's very,very tricky for people to manage
.
Tamsin Caine (17:02):
Yeah, absolutely.
I guess that's an importantpoint to make as well, because
you've just mentioned that youknow they're holding down
incredibly high-powered jobs, etcetera.
Domestic abuse is not, doesn'tappear just to a certain gender,
a certain colour, a certainrace, a certain ethnicity, a
certain religion.
It is across the board,whatever the wealth and statue
(17:27):
of the people involved, etcetera.
You know it's reallynon-discriminatory in terms of
people it can impact on, and Ithink that that's important that
we keep an eye on that as well,because I think there's a
certain idea that it's only acertain class or a certain
gender or whatever, and yet itcan appear across the board,
(17:50):
can't it?
Elaine Richardson (17:51):
Well, it's important that we're aware of
our own biases, because we allhave them, and part of the
training on the domestic abusecourse is to raise that
awareness and to say that peoplemight have particular ideas of
what a victim survivor lookslike and what a perpetrator
looks like, but you need tobanish that and think very
(18:14):
flexibly that it couldpotentially be anyone that
you're meeting.
Tamsin Caine (18:21):
And we move on to talk a little bit about more
about the mediation processesshortly.
But just just one furtherquestion.
If, for whatever reason, theparties involved have decided to
opt for the court process, theyneed to come and have a MIAM
(18:44):
with a mediator At that point.
Could you just tell us a bithow that works?
Is that an individual meeting?
Is it a joint meeting?
And what would happen duringthat meeting?
Elaine Richardson (18:58):
Okay, so it's often called a mediation,
information and assessmentmeeting, because that's what the
court calls it, and anyone whomakes, who wants to make an
application to the court, eitherabout the children or about
finances, they need to attend aMIAM, a pre-mediation meeting,
just to find out about what thealternatives are to going to
(19:20):
court, and so attendance isobligatory for anyone who wants
to make the application.
They have to attend, and so myjob in the miam is to assess for
suitability.
Um, the person I'm meeting alsomakes their own assessment.
(19:42):
Because it's voluntary, theymay choose not to do it, and
then I explain all the options,and it's not just about
(20:05):
mediation.
I'm talking about arbitrationand early neutral evaluation and
collaborative law, as well asmediation and as well as
explaining the court process.
So the accredited mediatorshould be able to talk with
confidence about all of thoseoptions so that people can make
informed choices.
It's always individual and it'salways confidential.
Tamsin Caine (20:29):
Okay, brilliant.
And is it only the person whowants to apply to the court that
attends the MIAM meeting, ordoes they form a pa rtner that
they also require to attend inMIAM?
Elaine Richardson (20:44):
There's not the same requirement as the
person who might be choosing tobe the applicant in court
proceedings, but the um secondparticipant, the potential
respondent in the courtproceedings.
There is an expectation uponthem to attend, and that's
become enshrined in the familypractice rules as of April this
(21:08):
year, because the rules changedand so if you went to court as
the respondent and you hadn'tattended a MIAM or done some
other form of non-court disputeresolution, the court requires
you now to fill in a form to saywhy not fair enough.
Tamsin Caine (21:24):
That seems fairly reasonable, it seems like a
fairly good plan to attend itand I am.
I know, you know, many yearsago there was sort of a
resistance to having having togo to this meeting, having to
and I think I've heard manypeople say, well, I had to go to
mediation before I was allowedto go to this meeting, having to
(21:44):
earn it.
I think I've heard many peoplesay, well, I had to go to
mediation before I was allowedto go to court, whereas actually
it should be viewed as a goodthing because the accredited
mediator is going to describeall of the options available to
you and court is not necessarilya particularly good place to be
with huge, long delays,financial burden, massive
(22:08):
emotional burden.
So looking at all the optionsand having clarity about what
they are and what they entail,that can only be a good thing in
my book?
Elaine Richardson (22:18):
Well, I think so, but of course I'm biased.
But what I suppose I wouldexplain is that what they're
attending is not mediation.
What they're attending is apre-mediation meeting or, if you
like, really a pre-non-courtdispute resolution meeting.
Itself would only take place ifall three people that the two,
(22:43):
the separating couple and themediator decided that was it was
appropriate to do so.
But I don't see that there'sany downside really in attending
MIAM.
It doesn't commit you toanything and you find out a lot
of information.
Tamsin Caine (22:56):
Yeah, okay, can only be a good thing.
As far as I'm concerned.
Let's move on to the differenttypes of mediation, because this
has got I think, as an outsiderfrom the mediation world far
more complicated because thereare so many more options.
So going to mediation is not asstraightforward as we perhaps
(23:23):
all once thought it was.
There are lots and lots ofoptions, and that can be a
really great thing because itopens the mediation doors for
people who perhaps in the pastwould have been considered not
suitable.
But it also means that ifyou're not involved in the
family justice sector, yourbrain's probably going to
explode at the volume ofinformation that's going to be
(23:45):
provided to you.
So I want to talk about optionsthat would be potentially
suitable, or could bepotentially suitable, for victim
survivors and theirperpetrators to go through
rather than going through thecourt process to get their
financial settlement sorted out.
(24:05):
So could you talk a little bitabout that please?
Elaine Richardson (24:09):
Yes, so I was trained in traditional or
classic family mediation as weall are mediators and then I did
some further advanced trainingin 2018.
And so I now describe myself asa hybrid mediator.
So hybrid mediation is anadvanced form of family
(24:32):
mediation.
That's all it means.
So, first of all, if I can justtell you the difference between
the two, I think that would behelpful.
Yeah, that would be great,thank you.
So in classic or traditionalfamily mediation, the mediator
(24:53):
can't hold any confidence.
This has to be completelytransparent.
So, even though in traditionalmediation, the participants can
sit in separate rooms so youmight think, oh well, that's a
good thing.
If there's been domestic abuse,they're sitting in separate
rooms they can also have theirlawyers present in classic or
traditional mediation.
But the main difference is thatthe mediator has to be
(25:17):
transparent.
So if something is shared inone room with the mediator, the
mediator has to then share thatin the other room.
Now, that's really tricky for avictim, survivor of abuse and a
perpetrator and, unwittingly,the mediator may be actually
(25:37):
contributing to the ongoingabuse.
So that's really difficult.
Ongoing abuse.
So that's really difficult.
Um, I actually I wrote anarticle recently for um, the
resolution review, which is ourmagazine and I was saying that
in traditional mediation thevictim survivor of the abuse
(25:58):
abusive x is completely exposedbecause they'll be trying to
deal with all the controlling,coercive, abusive behaviours
experienced during therelationship, whilst also trying
to problem solve, negotiate andfind options for mutual gain.
So that's the difficulty withdoing traditional mediation,
(26:21):
whereas in hybrid mediation bothparticipants sign my agreement
to mediate to say that I canhold confidences to assist with
their negotiation.
So the way it might work isthis there are two breakout
rooms.
Each person is sitting in aseparate breakout room.
(26:41):
This means that they don't hearor see the other person during
the entire course of the meeting.
So there's not that triggerthat could happen for victim
survivors of abuse making theother person this offer.
(27:05):
Abc, but don't say anythingjust yet, because I would like
an opportunity to explore thepossible consequences of this
with you and to see if there areany other options that you know
about that I haven't consideredand they might also be sharing
with me that they still feelscared, that it's difficult for
them.
So that can happen in private,and then I might go into the
(27:26):
other person's room and theymight say to me I'm thinking of
making the other person an offerX, y, z, but don't say anything
just yet because of the samereasons.
So then you'll see theadvantage I have because I'm
then holding in my mind thepossible proposals that each
could make to the other and thenI can assist them in terms of
timing of making that, ofdiscussing other options with
(27:48):
them.
So that's generally how hybridmediation works and I think that
that's really beneficial forthe victim survivor of abuse in
particular, because whensomebody's experienced trauma,
one way to reduce that trauma isto offer choices.
(28:09):
And of course, if you're sayingto the victim survivor, well,
your only option now is to go tocourt, that's actually a
reducing choice.
And we also know that there aremany drawbacks to going to
court with the perpetrator ofabuse and in fact the domestic
abuse commissioner has publisheda report last year about the
(28:31):
downsides of going to court whenyou've been in an abusive
relationship.
So I'm just looking at whatelse I said about the advantage.
So here are some of theadvantages for the victim
survivor it reduces manipulation, it reduces the opportunity for
it and moving the goalposts.
The victim survivor has theimmediate support and advice
(28:54):
from their lawyer if they've gottheir lawyer in the mediation
room in a separate space and, ofcourse, there's a reassurance,
if the perpetrator has theirlawyer, if they've got their
lawyer in the mediation room ina separate space.
And, of course, there's areassurance, if the perpetrator
has their lawyer with them, thatthey're being kept accountable
by their own lawyer.
So that's really helpful.
The victim survivor can chooseto be accompanied by a domestic
abuse specialist, so an IDFAindependent domestic violence
(29:17):
advisor or an ISFA IndependentSexual Violence Advisor.
That's possible.
You obviously decide not to bein the same room as the
perpetrator, so that gives you amuch safer, calmer space, and
it's often it often takes placeonline, so all of my work, for
(29:38):
example, is online.
It avoids the trauma and thecost of going to court.
You regain that autonomy that'sso important, I think, to help.
It's your own timeframe andyou're proactive rather than
reactive.
So those are just some of thereasons why I think it works in
some situations.
But, as I say, all the time themediator is assessing the
(30:01):
fluidity of risk, which canchange, and so at any point
anyone could say right, this isno longer appropriate or it's no
longer safe, and then we cantalk about other options okay,
what are some, or any, because Ican't see any of the downsides
(30:23):
of using hybrid mediation.
So the first thing is, if themediator hasn't spotted that
it's a domestic abuse situation,you know you really wouldn't
want to be perpetrating thatabuse.
You know you really wouldn'twant to be perpetrating that
abuse, and so it's veryimportant, I think, for
accreditors hybrid mediators tomake sure that they have done up
(30:45):
to date domestic abuse coursesand that they're well aware.
But you will find thatexperienced mediators will have
come across these situationsquite frequently.
They will have had experienceof it and they will know what to
do and they will very much havea gut feeling and awareness of
(31:06):
what's going on.
But that is one of thedifficulties if you haven't
spotted the potential for abusesometimes.
I think the other thing that canadversely affect mediation and
this is not just hybrid, thisincludes classic mediation as
well is delay.
Of course, we know that delaycauses mediation to break down.
(31:28):
Now, the thing about delay isthat perpetrators of abuse don't
wear their intentions on theirsleeve.
So if they are deliberatelyusing the mediation process to
add some delay into things, thenthe mediator needs to be really
aware of that and pick up onthat.
(31:49):
And so operating withintimeframes and boundaries is
important, and I think you knowfrom the mediator.
It's the mediator's process.
They need to take ownership ofit.
They need to put boundaries inplace.
Tamsin Caine (32:04):
That's really important to keep people safe
yeah, absolutely, it's like yousay, the quite often the
perpetrators are are charming,believable.
They're controlling andcoercive towards the person
they're in, they have been in arelationship with, and so being
that way with somebody else isalmost normal behavior for them.
(32:28):
So they won't say, oh, I needto cancel because I'm going to
create a delay in this mediationprocess.
They're going to have perfectlyviable and feasible and and
maybe even heartwarming reasonsfor delaying, cancelling, moving
, postponing, etc.
And that that, as you say, cancan lead to to difficulties.
(32:52):
Having said that, the courtprocess is, the delays currently
are tremendous as well.
So and they're not controlledby either of the parties
involved.
Elaine Richardson (33:06):
So, yeah, I mean, delay is just really one
of those tricky ones that youhave to manage, I think, very
proactively.
And of course, it's a realproblem if the person, if one of
the people who potentially isthe victim, survivor of domestic
abuse, but they don't realizeit and it's not absolutely
(33:27):
apparent to the mediator either,and then they might be saying
things to excuse the perpetratoroh, he can't fill it in because
he can't get hold of hisaccounts, and I understand that,
and um, so, all in all, it'sjust.
(33:48):
It's just, you know, being ableto assess, as you go along,
what's happening and then beingable to to say to both
participants you know thatthere's been some delay, you
know it's a, it's not the bestplace to be, to be in limbo.
It would be good to be able tomake some progress.
Um, we mustn't allow this todrift and and try to bring
(34:12):
everybody back onto um, atimetable effectively
Tamsin Caine (34:19):
Um, when you get to a point in the hybrid
mediation where I'm beingpositive again now, when we get
to a point in the hybridmediation where you have both
parties agreeing to a financialsettlement, one of the issues
that that I've seen is theperpetrator agreeing to a
(34:42):
settlement and then withdrawingthat agreement three days later,
a week later, two weeks later,etc.
Further delays is the in hybridmediation if both parties have
their lawyers there with them,is there the opportunity to
draft the financial settlementand get that agreed and done and
(35:02):
dusted at the hybrid mediationsession?
Elaine Richardson (35:05):
Yeah, that's one of the great advantages of
it.
So normally the mediator, atthe end of a successful
mediation, would draw up amemorandum of understanding.
The memorandum of understandingstill doesn't tie anybody in to
anything, so it's, in lawyers'terms, without prejudice.
So it's not a done deal inlayman's terms.
(35:28):
It's just that the two peoplehave made acceptable proposals
to one another, and the reasonit's set up like that is that
both people then can go and gettheir own individual legal
advice if they haven't done sobefore Though I always encourage
them to get it as early aspossible and then the lawyers
would go on to draft a consentorder.
(35:50):
But, as you say, there's quite alot of things that can happen
in between a memorandum ofunderstanding and a consent
order, between a memorandum ofunderstanding and a consent
order, and that's how aperpetrator of economic abuse
might operate.
You know it's a recognisedthing that happens.
So the advantage of hybridmediation when you've got
lawyers in the room at that lastmeeting, when the proposals
(36:15):
have been made and they're allacceptable, is that instead of
me drawing up the memorandum ofunderstanding, the lawyers can
start working on the consentorder straight away, and even if
they can't draft the consentorder itself, that particular
document.
In the meeting they can come upwith what's known as heads of
agreement, which again arebinding this case law on that,
(36:40):
and so that can be a hugeadvantage for the victim
survivor of domestic abuse tomake sure the thing that's been
agreed in mediation actuallyhappens.
Tamsin Caine (36:50):
Yeah, that's really good, isn't it?
That just takes away the nextstep, which can make the Lego
bricks all come tumbling down.
Elaine Richardson (36:59):
Yes, and, of course, what we, what we know
about working with um in caseswhere there's been domestic
abuse, is that progress can bevery slow.
Tamsin Caine (37:11):
Absolutely yeah yeah, for for all the reasons
that we've talked about, yeah,and we ask you a tricky question
now oh no um, some of thevictim survivors that I and me
(37:49):
would choose to work with andprobably more so than the
victims Fiverr would choose towork with, because they tend to
work with lawyers and otherprofessionals who are more
gentle and collaborative intheir approach.
From my experience, how do yougo about managing hybrid
(38:13):
mediation, where you've got theperpetrator being supported by a
particularly aggressive orlitigious solicitor on their in
their corner?
Elaine Richardson (38:24):
okay, so firstly, um, the accredited
mediator, the hybrid mediator,is there and hopefully is is
able to listen in on theirdiscussions, because, of course,
what you emphasize is that it'sconfidential.
It continues to be confidential, so you could be in the same
room as the perpetrator of abuse, together with a lawyer who,
(38:48):
who might be described as arottweiler never a good
description, I think, but anywayand then you can, you can
understand the dynamic, theadvice that's being given, and
as the mediator you might, youwould balance that out and say,
of course there is anotheroption, there is another way to
(39:09):
look at this, and so you'rethere to help that balance, I
suppose.
But if you, if you go back astep and we were talking about
these changes that came intoforce in April this year one of
the interesting things for alllawyers is that we now have
pre-action protocols for bothchild arrangements cases and for
(39:35):
financial cases.
So what that means is thatthere's best practice guidelines
about what you have to dobefore you make the application
to court.
Now, what's very interestingabout these guidelines?
Again, widely available.
I've been sending them toclients.
So, again, if a client has alawyer who is particularly
(40:00):
aggressive, who might not knowabout the pre-action protocol.
Mediators are now giving thepre-action protocol directly to
the clients and, of course, theclients will then hold their own
lawyer accountable and say whyhaven't you told me about this?
Why didn't you do this?
Say, why haven't you told meabout this, why didn't you do
(40:23):
this?
Because ultimately, if, um,there's no adherence to the
pre-action protocol, ultimatelya judge could make a costs order
against a client for notconsidering non-court dispute
resolution.
So I think that's a pretty goodsafeguard that's now come into
play.
Tamsin Caine (40:38):
Yeah that could prove to be costly, which
perpetrators, in my experience,don't generally tend to want or
be very keen on.
So, yeah, that does seem like amassive positive.
I'm devastated, elaine, butwe're coming to the end of our
time together.
(40:58):
I'm devastated, elaine, butwe're coming to the end of our
time together.
I feel like I've talked to youall afternoon and I know it's
kind, but absolutely true, isthere?
Elaine Richardson (41:12):
I think what I'd like to emphasise is that
when somebody is embarking onthis separation journey and this
is for anybody really I thinkit's really important that you
get your team, you have asupport team.
I think that's just vital.
And so solicitors are not allsinging, all dancing.
(41:37):
So a solicitor can't be atherapist as well.
They might try.
A solicitor can't be atherapist as well.
They might try, but they reallycan't be a therapist as well.
And, um, so I'd say, getting ateam of people so that might be,
um, you might have a lawyer, amediation friendly lawyer, you
might have your mediator, youmight have your divorce coach
(41:57):
and you might have yourfinancial advisor, and so that
team building is so important,because I think that that helps
anybody to cope with what is areally traumatic and emotional
time, and particularly,obviously, if there are kids
involved.
Tamsin Caine (42:16):
Yeah, absolutely Thoroughly agree with that, and
I think I would add to that thatpeople view having a team of
people working together asthough that would be far more
expensive than just working withone person.
But trust us when we saygetting your lawyer to give you
(42:38):
pension advice or to cry ontheir shoulder is absolutely not
the best use of your money andthat will be probably the most
expensive option that you've got.
So, yeah, absolutely Get theright people doing the right
jobs for you and it willgenuinely save you money,
absolutely.
Elaine, thank you so much forjoining me.
(43:00):
I've massively enjoyed talkingto you and I know that our
listeners will have found thathugely helpful oh good one.
Elaine Richardson (43:06):
Thank you so much for inviting me.
It's delightful to talk to youas well, and yes, I think we
could just carry on allafternoon, couldn't we?
Tamsin Caine (43:14):
absolutely.
Thank you for listening.
If you found today's episodeuseful, please do give us a
review and a five-star rating.
It really does help us to getthis podcast out to more people
who need it.
Many thanks, hi, and I hope youenjoyed that episode of the
(43:36):
smart Divorce Podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website
wwwsmartdivorcecouk.
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
would be fantastic.
(43:57):
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
Also, if you would like somefurther support, we do have a
facebook group now.
It's called separation, divorceand dissolution uk.
(44:18):
Please do on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
questions.
Okay, have a great day and takecare.
Welcome to series 10 of the Smart Divorce Podcast.
During this series, we're goingto be speaking about the
difficult subject of domesticabuse.
Unfortunately, during my work,I come across people who are
victim survivors of domesticabuse on a far too regular basis
.
So we're going to be talking tothose who have survived
(00:30):
themselves, to professionalsworking in this area, to
solicitors, to hopefully helpyou to find the right support if
you're in that situation.
This is an issue that's notgoing away.
So if you're going through thisor you know anybody who is, I
really hope this series helpedyou.
Thanks for listening.
(00:55):
Hello and welcome to today'sepisode of the Smart Divorce
Podcast.
We are releasing this duringFamily Mediation Week in January
2025.
If you're listening to it laterthan that, it doesn't matter,
but I wanted to talk, as part ofthis series on domestic abuse,
to the fabulous ElaineRichardson all about how
(01:18):
mediation can be used indomestic abuse situations.
So welcome, Elaine.
Thank you for joining me again
Elaine Richardson (01:25):
And thanks fo much for having me again
Tamsin Caine (01:27):
Shall we start off ?
Would you !undefined tointroduce yourself and perhaps a
little bit about why I knew youwould be the perfect person to
talk about this subject?
Elaine Richardson (01:39):
Okay, so by background I'm an experienced
family lawyer.
In my past life I have donelots of litigation, so
represented individual clientsand taken them through their
divorce journey or theirseparation journey.
As part of that, I'mcollaboratively trained.
That means I can sit down withanother lawyer and a separating
(02:03):
couple and talk about reachingagreement.
I'm an accredited mediator, sothat means I've done a portfolio
type exam to get myqualification and I've been a
mediator for some time now.
I'm also child inclusive, whichmeans that I can speak to
(02:25):
children individually if that'srequired.
I now am a trainer, so I trainother lawyers and mediators and
I also supervise other lawyersand mediators in their practice
so that they have a reflectivepractice, that they have a
(02:46):
reflective practice, and one ofthe areas that I specialise in
is domestic abuse andsafeguarding and also high
conflict personalities, and I'vedone some of my training with
the High Conflict Institute ofAmerica.
I present the domestic abuseand safeguarding course for um,
a member organization calledResolution, which used to be
(03:09):
called the Solicitors Family LawAssociation.
Um and um
..
and I, I guess, most recently,which I think is also incredibly
relevant to this topic you'vegained a particularly exciting
(03:30):
qualification.
Well, it's exciting for me.
It's exciting for me too
Tamsin Caine (03:36):
And I think it's useful, massively useful, for
people who are victims andsurvivors of domestic abuse to
understand a little bit aboutthat qualification.
Could domestic abuse tounderstand a little bit about
that qualification.
Could you tell us just a littlebit about ?
Elaine Richardson (03:48):
.
Um, so I'm a qualified nowtrauma-informed uh lawyer.
I did that qualification withthe Law Society of Scotland.
Um, it's a hugely popularcourse worldwide.
So I was.
I did the course with delegatesfrom as far afield as Australia
and Canada.
I think probably there's ashortage of this type of course,
(04:12):
but I think the reason it'simportant for victim survivors
of domestic abuse is that theywill be in a traumatized state
most likely.
Very often they will havepost-traumatic stress disorder,
even if they don't necessarilyrealize it, and, of course, the
(04:34):
terrible thing is they might noteven realize that they're in an
abusive relationship.
So being trauma aware andtrauma informed is just so
important because it has animpact on the way that I meet
with people and hopefully itenables them to have the
(04:55):
confidential conversations withme that they need to have.
Tamsin Caine (05:01):
Such a vital and useful qualification.
It's such a shame there'sthere's so few people qualified
in it and that obviously there'sa massive calling for, uh, more
of these courses to to be run.
So we're gonna, we're going tostart off and talk about um,
about mediation and about someof the ways in which you see
(05:25):
victim survivors.
I want to appear in front ofyou.
It feels like there's some sortof magic going on.
No, the way they present.
The way they present absolutely, because I guess a lot of the
people I work with, and I'm surea lot of the people you work
with, aren't necessarily awareof the abuse that they've been
(05:48):
experiencing or to the levelthat they've been experiencing.
So could you just tell us alittle bit about how they
present to you and how you, Iguess, pull on the the string to
sort of help it to unravel andbe more aware of it.
Elaine Richardson (06:08):
It can be really tricky.
Most people that I meet are notgoing to start the conversation
by saying I know that I'm thevictim, survivor of domestic
abuse, and so some people havemore awareness than others.
And of course, the difficultywith domestic abuse is it can be
(06:32):
quite subtle and difficult tospot.
So if I just start by sayingthat all domestic abuse is based
on a framework of coercive andcontrolling behavior, sometimes
known as CCB.
But this coercive andcontrolling behavior is the
(06:54):
basis for all domestic abuse.
Now it then might show itselfin different ways.
So it might show itself asphysical abuse, which is what
we've been well aware of formany years now.
The coercive and controllingbehavior might show itself in
economic abuse, which we'regetting more information,
(07:17):
knowledge about, and it's suchan important area and there's a
fantastic report actually thatResolution have done fairly
recently about economic abuse.
I can see you nodding.
It really is fantastic.
I send it out as a resourcevery often for my clients.
So the coercive and controllingbehaviour can also show itself
(07:38):
as sexual abuse, psychologicalabuse, but if you just go back
to it, it's always based oncoercive and controlling
behavior.
I think that's a good guidelineand if I was to give you a
description of coercive andcontrolling behavior as a sort
of one sentence, I'd say thatit's behavior that's designed to
(08:00):
entrap somebody in arelationship.
Okay, so it's about trappingsomebody in a relationship and,
of course, if it's very subtleand manipulative behaviour, the
victim-survivor may not realisethat they are being trapped.
So that's where some of thesubtle aspects can be more
(08:23):
difficult to spot, and I thinkthat's why, historically, we
talked about domestic violence,because that was the thing that
was easy to spot.
You know, you could spot theblack eye and the broken arm and
whatever.
But I think that as time hasgone by, we've become much more
aware of the basis for alldomestic abuse being coercive
and controlling behaviour, thebasis for all domestic abuse
(08:47):
being coercive and controllingbehavior.
So it might help then if I justsay a little bit about the
cycle of abuse, because I thinkthat that can be really a
helpful thing to describe.
So what very often happens isthere's an incident, an episode
of abuse.
It doesn't have to be high risk, it doesn't have to be physical
, it can be in many differentforms and then it usually
(09:16):
escalates as the relationshipprogresses.
There's a honeymoon period thatfollows the incident, so the
perpetrator may make promises tochange, give gifts, love,
bombing, denial, blaming,spending time together,
bargaining, and of course thatthen creates hope for the victim
survivor that maybe things willchange and the perpetrator will
stop their abusive behavior.
(09:37):
Then what tends to happen istension rises following the
honeymoon.
There's a shift in the behaviorof the perpetrator.
They stop following throughwith promises of change and
there's a mood shift and thevictim doesn't know where they
stand and their survivalresponses will peak.
(09:59):
They may change their behaviorto try and appease the
perpetrator, their behaviour totry and appease the perpetrator.
This is often described to meand other domestic abuse experts
as walking on eggshells.
You'll hear people talk aboutthat.
They don't know where theystand.
They're walking on eggshellsand this is the cycle and it
continues for as long as therelationship lasts, and usually
(10:22):
what happens is the periodbetween each stage shortens with
the risk level increasing.
So eventually some victimsurvivors report that there was
no honeymoon period and ofcourse, the other important
thing to say is that risk is atits peak at the point of the
cycle being broken and therelationship ending
Tamsin Caine (10:47):
We've talked a lot about post-separation abuse and
and that is that is, um, at thepoint where a lot of people
find it's even more um full-onthan it than it was during the
relationship, even though youknow we regularly hear people
say, oh well, if that's whatyou're experiencing, why don't
(11:07):
you just leave?
We know that the why don't youjust leave is not as simple and
straightforward as that, becausethe entrapment that you've
talked about, and also that theleaving is, is where the, the
abuse becomes even even stronger, isn't it?
Yes, it can be.
Bearing all that in mind, whenyou meet with a client, a
(11:32):
potential client or client, how,how we, how do you go about
asking them the right questionsto try and understand whether
there's been an abuse in withinthis relationship?
Obviously, not allrelationships that come to an
end have abuse, but we do needto kind of start fishing a
(11:53):
little bit to see if that is thesituation.
Elaine Richardson (11:57):
So at the outset, I say that the most
important thing to me is to keeppeople safe in whatever way
they work with me, and that,sadly, I know that abuse occurs
in relationships and some peoplejust simply have worries for
(12:18):
their own safety.
So I say that we will bespeaking about this during the
meeting.
So I say that we will bespeaking about this during the
meeting.
So it's the first thing I say,apart from hello and welcome.
It's the first thing I say.
And I also say to people thatI'm really aware that some of
(12:39):
the conversations that we havein these meetings can be
upsetting and that people canget very upset because what we
speak about may be upsetting andthat, although I'm fine to
carry on, I want them to be okay.
So I ask them if they will letme know if they need a break,
and that's very much an elementof trauma informed practice of
(13:03):
flagging that up right at thebeginning and giving people
choices, absolutely.
Tamsin Caine (13:08):
And would this be in a meeting with each party
individually, or wouldn't be ina meeting at this point?
Elaine Richardson (13:17):
This is when I very first meet with people,
so I meet with them for anindividual pre-mediation meeting
.
So it's important that I get itright from the outset and set
the scene.
But that continues because if wethen decide that we are going
to have a mediation meeting withall three people present, they
might be sitting in separatebreakout rooms, but I'm still
(13:40):
assessing and enabling them tospeak to me confidentially.
I'm still assessing risk.
So I suppose that's anotherimportant, really important
point to make is this fluidityof risk that I know you and I
have spoken about, and this cannever be a tick box exercise at
the beginning of a relationshipwith a client.
(14:01):
It has to run like a threadseamlessly throughout the work
that you relationship with aclient.
It has to run like a threadseamlessly throughout the work
that you do with the client.
Because, as I said before, themanipulative behavior of a
perpetrator may be reallydifficult to spot and in fact
you may not spot it veryoutwardly until perhaps you've
(14:23):
explored some options forsettlement and it doesn't align
with what the perpetrator thinksshould happen, and then you
might see a different side tothem, because of course
perpetrators of abuse wear masksand so they might only be
showing you at that point themask that they usually put on
(14:46):
when they're meeting otherpeople.
Tamsin Caine (14:49):
Absolutely.
You know that mask candefinitely slip, can't it?
I think the other thing that'sworth saying is that when people
come to see us, even if they'vebeen in an abusive relationship
, that's become normal to them.
What they've lived and breathedmight have crept up very subtly
(15:13):
, might have come upon them and,because it's their world, their
normality, they may notrecognise it as abusive
relationships.
So, even if we're saying we'regoing to talk, you know we're
going to talk about it.
There may be things that areupsetting.
They may not be upsetting untilthere becomes a point where
(15:35):
suddenly they go oh, that that'sme.
I've just realized that, thatthis has been happening to me
and that actually my reality, mynormality, is not what I
thought was everybody else'snormality, and that can creep up
on people.
(15:55):
So, as you talked about thefluidity of risk, it's it's so
important because they're notnecessarily coming to see you
recognising their status.
Elaine Richardson (16:05):
Absolutely, and that happens to me
frequently, and I give theanalogy of boiling a frog.
So if you put a frog into hotwater, it helps you to remember
it.
If you were boiling a frog andyou put a frog into hot water,
it would leap out straight away,wouldn't it?
Whereas if you put a frog intoa pan of cold water and you
(16:28):
slowly turned up the heat, thenit's far less likely that the
frog will realize that it'sbeing boiled.
I've met with some absolutelyamazing people who are holding
down incredible jobs, veryresponsible jobs, and when they
understand that they're actuallyvictim survivors, which they
(16:51):
hadn't appreciated, it's aterrible.
It floors them completely.
As you can imagine, it's very,very tricky for people to manage
.
Tamsin Caine (17:02):
Yeah, absolutely.
I guess that's an importantpoint to make as well, because
you've just mentioned that youknow they're holding down
incredibly high-powered jobs, etcetera.
Domestic abuse is not, doesn'tappear just to a certain gender,
a certain colour, a certainrace, a certain ethnicity, a
certain religion.
It is across the board,whatever the wealth and statue
(17:27):
of the people involved, etcetera.
You know it's reallynon-discriminatory in terms of
people it can impact on, and Ithink that that's important that
we keep an eye on that as well,because I think there's a
certain idea that it's only acertain class or a certain
gender or whatever, and yet itcan appear across the board,
(17:50):
can't it?
Elaine Richardson (17:51):
Well, it's important that we're aware of
our own biases, because we allhave them, and part of the
training on the domestic abusecourse is to raise that
awareness and to say that peoplemight have particular ideas of
what a victim survivor lookslike and what a perpetrator
looks like, but you need tobanish that and think very
(18:14):
flexibly that it couldpotentially be anyone that
you're meeting.
Tamsin Caine (18:21):
And we move on to talk a little bit about more
about the mediation processesshortly.
But just just one furtherquestion.
If, for whatever reason, theparties involved have decided to
opt for the court process, theyneed to come and have a MIAM
(18:44):
with a mediator At that point.
Could you just tell us a bithow that works?
Is that an individual meeting?
Is it a joint meeting?
And what would happen duringthat meeting?
Elaine Richardson (18:58):
Okay, so it's often called a mediation,
information and assessmentmeeting, because that's what the
court calls it, and anyone whomakes, who wants to make an
application to the court, eitherabout the children or about
finances, they need to attend aMIAM, a pre-mediation meeting,
just to find out about what thealternatives are to going to
(19:20):
court, and so attendance isobligatory for anyone who wants
to make the application.
They have to attend, and so myjob in the miam is to assess for
suitability.
Um, the person I'm meeting alsomakes their own assessment.
(19:42):
Because it's voluntary, theymay choose not to do it, and
then I explain all the options,and it's not just about
(20:05):
mediation.
I'm talking about arbitrationand early neutral evaluation and
collaborative law, as well asmediation and as well as
explaining the court process.
So the accredited mediatorshould be able to talk with
confidence about all of thoseoptions so that people can make
informed choices.
It's always individual and it'salways confidential.
Tamsin Caine (20:29):
Okay, brilliant.
And is it only the person whowants to apply to the court that
attends the MIAM meeting, ordoes they form a pa rtner that
they also require to attend inMIAM?
Elaine Richardson (20:44):
There's not the same requirement as the
person who might be choosing tobe the applicant in court
proceedings, but the um secondparticipant, the potential
respondent in the courtproceedings.
There is an expectation uponthem to attend, and that's
become enshrined in the familypractice rules as of April this
(21:08):
year, because the rules changedand so if you went to court as
the respondent and you hadn'tattended a MIAM or done some
other form of non-court disputeresolution, the court requires
you now to fill in a form to saywhy not fair enough.
Tamsin Caine (21:24):
That seems fairly reasonable, it seems like a
fairly good plan to attend itand I am.
I know, you know, many yearsago there was sort of a
resistance to having having togo to this meeting, having to
and I think I've heard manypeople say, well, I had to go to
mediation before I was allowedto go to this meeting, having to
(21:44):
earn it.
I think I've heard many peoplesay, well, I had to go to
mediation before I was allowedto go to court, whereas actually
it should be viewed as a goodthing because the accredited
mediator is going to describeall of the options available to
you and court is not necessarilya particularly good place to be
with huge, long delays,financial burden, massive
(22:08):
emotional burden.
So looking at all the optionsand having clarity about what
they are and what they entail,that can only be a good thing in
my book?
Elaine Richardson (22:18):
Well, I think so, but of course I'm biased.
But what I suppose I wouldexplain is that what they're
attending is not mediation.
What they're attending is apre-mediation meeting or, if you
like, really a pre-non-courtdispute resolution meeting.
Itself would only take place ifall three people that the two,
(22:43):
the separating couple and themediator decided that was it was
appropriate to do so.
But I don't see that there'sany downside really in attending
MIAM.
It doesn't commit you toanything and you find out a lot
of information.
Tamsin Caine (22:56):
Yeah, okay, can only be a good thing.
As far as I'm concerned.
Let's move on to the differenttypes of mediation, because this
has got I think, as an outsiderfrom the mediation world far
more complicated because thereare so many more options.
So going to mediation is not asstraightforward as we perhaps
(23:23):
all once thought it was.
There are lots and lots ofoptions, and that can be a
really great thing because itopens the mediation doors for
people who perhaps in the pastwould have been considered not
suitable.
But it also means that ifyou're not involved in the
family justice sector, yourbrain's probably going to
explode at the volume ofinformation that's going to be
(23:45):
provided to you.
So I want to talk about optionsthat would be potentially
suitable, or could bepotentially suitable, for victim
survivors and theirperpetrators to go through
rather than going through thecourt process to get their
financial settlement sorted out.
(24:05):
So could you talk a little bitabout that please?
Elaine Richardson (24:09):
Yes, so I was trained in traditional or
classic family mediation as weall are mediators and then I did
some further advanced trainingin 2018.
And so I now describe myself asa hybrid mediator.
So hybrid mediation is anadvanced form of family
(24:32):
mediation.
That's all it means.
So, first of all, if I can justtell you the difference between
the two, I think that would behelpful.
Yeah, that would be great,thank you.
So in classic or traditionalfamily mediation, the mediator
(24:53):
can't hold any confidence.
This has to be completelytransparent.
So, even though in traditionalmediation, the participants can
sit in separate rooms so youmight think, oh well, that's a
good thing.
If there's been domestic abuse,they're sitting in separate
rooms they can also have theirlawyers present in classic or
traditional mediation.
But the main difference is thatthe mediator has to be
(25:17):
transparent.
So if something is shared inone room with the mediator, the
mediator has to then share thatin the other room.
Now, that's really tricky for avictim, survivor of abuse and a
perpetrator and, unwittingly,the mediator may be actually
(25:37):
contributing to the ongoingabuse.
So that's really difficult.
Ongoing abuse.
So that's really difficult.
Um, I actually I wrote anarticle recently for um, the
resolution review, which is ourmagazine and I was saying that
in traditional mediation thevictim survivor of the abuse
(25:58):
abusive x is completely exposedbecause they'll be trying to
deal with all the controlling,coercive, abusive behaviours
experienced during therelationship, whilst also trying
to problem solve, negotiate andfind options for mutual gain.
So that's the difficulty withdoing traditional mediation,
(26:21):
whereas in hybrid mediation bothparticipants sign my agreement
to mediate to say that I canhold confidences to assist with
their negotiation.
So the way it might work isthis there are two breakout
rooms.
Each person is sitting in aseparate breakout room.
(26:41):
This means that they don't hearor see the other person during
the entire course of the meeting.
So there's not that triggerthat could happen for victim
survivors of abuse making theother person this offer.
(27:05):
Abc, but don't say anythingjust yet, because I would like
an opportunity to explore thepossible consequences of this
with you and to see if there areany other options that you know
about that I haven't consideredand they might also be sharing
with me that they still feelscared, that it's difficult for
them.
So that can happen in private,and then I might go into the
(27:26):
other person's room and theymight say to me I'm thinking of
making the other person an offerX, y, z, but don't say anything
just yet because of the samereasons.
So then you'll see theadvantage I have because I'm
then holding in my mind thepossible proposals that each
could make to the other and thenI can assist them in terms of
timing of making that, ofdiscussing other options with
(27:48):
them.
So that's generally how hybridmediation works and I think that
that's really beneficial forthe victim survivor of abuse in
particular, because whensomebody's experienced trauma,
one way to reduce that trauma isto offer choices.
(28:09):
And of course, if you're sayingto the victim survivor, well,
your only option now is to go tocourt, that's actually a
reducing choice.
And we also know that there aremany drawbacks to going to
court with the perpetrator ofabuse and in fact the domestic
abuse commissioner has publisheda report last year about the
(28:31):
downsides of going to court whenyou've been in an abusive
relationship.
So I'm just looking at whatelse I said about the advantage.
So here are some of theadvantages for the victim
survivor it reduces manipulation, it reduces the opportunity for
it and moving the goalposts.
The victim survivor has theimmediate support and advice
(28:54):
from their lawyer if they've gottheir lawyer in the mediation
room in a separate space and, ofcourse, there's a reassurance,
if the perpetrator has theirlawyer, if they've got their
lawyer in the mediation room ina separate space.
And, of course, there's areassurance, if the perpetrator
has their lawyer with them, thatthey're being kept accountable
by their own lawyer.
So that's really helpful.
The victim survivor can chooseto be accompanied by a domestic
abuse specialist, so an IDFAindependent domestic violence
(29:17):
advisor or an ISFA IndependentSexual Violence Advisor.
That's possible.
You obviously decide not to bein the same room as the
perpetrator, so that gives you amuch safer, calmer space, and
it's often it often takes placeonline, so all of my work, for
(29:38):
example, is online.
It avoids the trauma and thecost of going to court.
You regain that autonomy that'sso important, I think, to help.
It's your own timeframe andyou're proactive rather than
reactive.
So those are just some of thereasons why I think it works in
some situations.
But, as I say, all the time themediator is assessing the
(30:01):
fluidity of risk, which canchange, and so at any point
anyone could say right, this isno longer appropriate or it's no
longer safe, and then we cantalk about other options okay,
what are some, or any, because Ican't see any of the downsides
(30:23):
of using hybrid mediation.
So the first thing is, if themediator hasn't spotted that
it's a domestic abuse situation,you know you really wouldn't
want to be perpetrating thatabuse.
You know you really wouldn'twant to be perpetrating that
abuse, and so it's veryimportant, I think, for
accreditors hybrid mediators tomake sure that they have done up
(30:45):
to date domestic abuse coursesand that they're well aware.
But you will find thatexperienced mediators will have
come across these situationsquite frequently.
They will have had experienceof it and they will know what to
do and they will very much havea gut feeling and awareness of
(31:06):
what's going on.
But that is one of thedifficulties if you haven't
spotted the potential for abusesometimes.
I think the other thing that canadversely affect mediation and
this is not just hybrid, thisincludes classic mediation as
well is delay.
Of course, we know that delaycauses mediation to break down.
(31:28):
Now, the thing about delay isthat perpetrators of abuse don't
wear their intentions on theirsleeve.
So if they are deliberatelyusing the mediation process to
add some delay into things, thenthe mediator needs to be really
aware of that and pick up onthat.
(31:49):
And so operating withintimeframes and boundaries is
important, and I think you knowfrom the mediator.
It's the mediator's process.
They need to take ownership ofit.
They need to put boundaries inplace.
Tamsin Caine (32:04):
That's really important to keep people safe
yeah, absolutely, it's like yousay, the quite often the
perpetrators are are charming,believable.
They're controlling andcoercive towards the person
they're in, they have been in arelationship with, and so being
that way with somebody else isalmost normal behavior for them.
(32:28):
So they won't say, oh, I needto cancel because I'm going to
create a delay in this mediationprocess.
They're going to have perfectlyviable and feasible and and
maybe even heartwarming reasonsfor delaying, cancelling, moving
, postponing, etc.
And that that, as you say, cancan lead to to difficulties.
(32:52):
Having said that, the courtprocess is, the delays currently
are tremendous as well.
So and they're not controlledby either of the parties
involved.
Elaine Richardson (33:06):
So, yeah, I mean, delay is just really one
of those tricky ones that youhave to manage, I think, very
proactively.
And of course, it's a realproblem if the person, if one of
the people who potentially isthe victim, survivor of domestic
abuse, but they don't realizeit and it's not absolutely
(33:27):
apparent to the mediator either,and then they might be saying
things to excuse the perpetratoroh, he can't fill it in because
he can't get hold of hisaccounts, and I understand that,
and um, so, all in all, it'sjust.
(33:48):
It's just, you know, being ableto assess, as you go along,
what's happening and then beingable to to say to both
participants you know thatthere's been some delay, you
know it's a, it's not the bestplace to be, to be in limbo.
It would be good to be able tomake some progress.
Um, we mustn't allow this todrift and and try to bring
(34:12):
everybody back onto um, atimetable effectively
Tamsin Caine (34:19):
Um, when you get to a point in the hybrid
mediation where I'm beingpositive again now, when we get
to a point in the hybridmediation where you have both
parties agreeing to a financialsettlement, one of the issues
that that I've seen is theperpetrator agreeing to a
(34:42):
settlement and then withdrawingthat agreement three days later,
a week later, two weeks later,etc.
Further delays is the in hybridmediation if both parties have
their lawyers there with them,is there the opportunity to
draft the financial settlementand get that agreed and done and
(35:02):
dusted at the hybrid mediationsession?
Elaine Richardson (35:05):
Yeah, that's one of the great advantages of
it.
So normally the mediator, atthe end of a successful
mediation, would draw up amemorandum of understanding.
The memorandum of understandingstill doesn't tie anybody in to
anything, so it's, in lawyers'terms, without prejudice.
So it's not a done deal inlayman's terms.
(35:28):
It's just that the two peoplehave made acceptable proposals
to one another, and the reasonit's set up like that is that
both people then can go and gettheir own individual legal
advice if they haven't done sobefore Though I always encourage
them to get it as early aspossible and then the lawyers
would go on to draft a consentorder.
(35:50):
But, as you say, there's quite alot of things that can happen
in between a memorandum ofunderstanding and a consent
order, between a memorandum ofunderstanding and a consent
order, and that's how aperpetrator of economic abuse
might operate.
You know it's a recognisedthing that happens.
So the advantage of hybridmediation when you've got
lawyers in the room at that lastmeeting, when the proposals
(36:15):
have been made and they're allacceptable, is that instead of
me drawing up the memorandum ofunderstanding, the lawyers can
start working on the consentorder straight away, and even if
they can't draft the consentorder itself, that particular
document.
In the meeting they can come upwith what's known as heads of
agreement, which again arebinding this case law on that,
(36:40):
and so that can be a hugeadvantage for the victim
survivor of domestic abuse tomake sure the thing that's been
agreed in mediation actuallyhappens.
Tamsin Caine (36:50):
Yeah, that's really good, isn't it?
That just takes away the nextstep, which can make the Lego
bricks all come tumbling down.
Elaine Richardson (36:59):
Yes, and, of course, what we, what we know
about working with um in caseswhere there's been domestic
abuse, is that progress can bevery slow.
Tamsin Caine (37:11):
Absolutely yeah yeah, for for all the reasons
that we've talked about, yeah,and we ask you a tricky question
now oh no um, some of thevictim survivors that I and me
(37:49):
would choose to work with andprobably more so than the
victims Fiverr would choose towork with, because they tend to
work with lawyers and otherprofessionals who are more
gentle and collaborative intheir approach.
From my experience, how do yougo about managing hybrid
(38:13):
mediation, where you've got theperpetrator being supported by a
particularly aggressive orlitigious solicitor on their in
their corner?
Elaine Richardson (38:24):
okay, so firstly, um, the accredited
mediator, the hybrid mediator,is there and hopefully is is
able to listen in on theirdiscussions, because, of course,
what you emphasize is that it'sconfidential.
It continues to be confidential, so you could be in the same
room as the perpetrator of abuse, together with a lawyer who,
(38:48):
who might be described as arottweiler never a good
description, I think, but anywayand then you can, you can
understand the dynamic, theadvice that's being given, and
as the mediator you might, youwould balance that out and say,
of course there is anotheroption, there is another way to
(39:09):
look at this, and so you'rethere to help that balance, I
suppose.
But if you, if you go back astep and we were talking about
these changes that came intoforce in April this year one of
the interesting things for alllawyers is that we now have
pre-action protocols for bothchild arrangements cases and for
(39:35):
financial cases.
So what that means is thatthere's best practice guidelines
about what you have to dobefore you make the application
to court.
Now, what's very interestingabout these guidelines?
Again, widely available.
I've been sending them toclients.
So, again, if a client has alawyer who is particularly
(40:00):
aggressive, who might not knowabout the pre-action protocol.
Mediators are now giving thepre-action protocol directly to
the clients and, of course, theclients will then hold their own
lawyer accountable and say whyhaven't you told me about this?
Why didn't you do this?
Say, why haven't you told meabout this, why didn't you do
(40:23):
this?
Because ultimately, if, um,there's no adherence to the
pre-action protocol, ultimatelya judge could make a costs order
against a client for notconsidering non-court dispute
resolution.
So I think that's a pretty goodsafeguard that's now come into
play.
Tamsin Caine (40:38):
Yeah that could prove to be costly, which
perpetrators, in my experience,don't generally tend to want or
be very keen on.
So, yeah, that does seem like amassive positive.
I'm devastated, elaine, butwe're coming to the end of our
time together.
(40:58):
I'm devastated, elaine, butwe're coming to the end of our
time together.
I feel like I've talked to youall afternoon and I know it's
kind, but absolutely true, isthere?
Elaine Richardson (41:12):
I think what I'd like to emphasise is that
when somebody is embarking onthis separation journey and this
is for anybody really I thinkit's really important that you
get your team, you have asupport team.
I think that's just vital.
And so solicitors are not allsinging, all dancing.
(41:37):
So a solicitor can't be atherapist as well.
They might try.
A solicitor can't be atherapist as well.
They might try, but they reallycan't be a therapist as well.
And, um, so I'd say, getting ateam of people so that might be,
um, you might have a lawyer, amediation friendly lawyer, you
might have your mediator, youmight have your divorce coach
(41:57):
and you might have yourfinancial advisor, and so that
team building is so important,because I think that that helps
anybody to cope with what is areally traumatic and emotional
time, and particularly,obviously, if there are kids
involved.
Tamsin Caine (42:16):
Yeah, absolutely Thoroughly agree with that, and
I think I would add to that thatpeople view having a team of
people working together asthough that would be far more
expensive than just working withone person.
But trust us when we saygetting your lawyer to give you
(42:38):
pension advice or to cry ontheir shoulder is absolutely not
the best use of your money andthat will be probably the most
expensive option that you've got.
So, yeah, absolutely Get theright people doing the right
jobs for you and it willgenuinely save you money,
absolutely.
Elaine, thank you so much forjoining me.
(43:00):
I've massively enjoyed talkingto you and I know that our
listeners will have found thathugely helpful oh good one.
Elaine Richardson (43:06):
Thank you so much for inviting me.
It's delightful to talk to youas well, and yes, I think we
could just carry on allafternoon, couldn't we?
Tamsin Caine (43:14):
absolutely.
Thank you for listening.
If you found today's episodeuseful, please do give us a
review and a five-star rating.
It really does help us to getthis podcast out to more people
who need it.
Many thanks, hi, and I hope youenjoyed that episode of the
(43:36):
smart Divorce Podcast.
If you would like to get intouch, please have a look in the
show notes for our details orgo onto the website
wwwsmartdivorcecouk.
Also, if you are listening onApple Podcasts or on Spotify and
you wouldn't mind leaving us alovely five-star review, that
would be fantastic.
(43:57):
I know that lots of ourlisteners are finding this is
incredibly helpful in theirjourney through separation,
divorce and dissolving a civilpartnership.
Also, if you would like somefurther support, we do have a
facebook group now.
It's called separation, divorceand dissolution uk.
(44:18):
Please do on to Facebook,search up the group and we'd be
delighted to have you join us.
The one thing I would say is doplease answer their membership
questions.
Okay, have a great day and takecare.
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