|The Poisoned Apple by DevianArt|
Mediation-the Poisoned Apple.
Social and administrative law, such as the ‘Child, Family And Community Services Act’, has certain aims and intentions. Generally speaking the objective is to insure that children are made safe, either in their own homes or in alternative care. Only if there is strong evidence that a more moderate course of action is not practicable, should people be bereft of their children. Just and fair processes must be used at all times. Safeguards and accountability are built in. Various sections of the Act assert the loftiest of intentions and the details of procedure that were intended to support them.
Beneficial tools can also be used as weapons. Just as a chisel can cut wood or cut a throat, or a hammer crush a skull just as easily as drive a nail, the clauses of the Act can become destructive when in the wrong hands. The Ministry of Children and Family Development has shown repeatedly that it works in a largely adversarial culture. No child can be removed into care without immediately taking the case to court. This is meant as a safeguard for the child and the parents, but in actual fact what happens is that the family gets pitched into the arena of court, which has an ancient tradition of being adversarial and combative. It is ingrained in the culture and into all the processes, so even the mildest of social workers find themselves compelled to be adversarial.
The people who wrote the current Act thought that they had a good idea. They would try to avoid the conflict of court by encouraging conciliation and mediation. By giving that avenue the force of law, they would try to make sure it was considered. When the present C.F.& C.S.A. was in bill form, the Gove inquiry was taking place. There was a self-help group of mothers called “Mothers in Crisis,” who had tangled with the child protection authorities. A representative addressed Judge Gove urging him to try to stop the passage of the act. “ Don’t let that Act pass your honour” she told him. “There’s too many of them weasel words in it for my liking.” I could not have put it better.
Writers of the Act mistakenly sought to identify a prescription for every situation and in effect, legislated practice, with predictable and disastrous results. The act became so lengthy and complicated that it ground the courts to a standstill and the Act is largely responsible for the choked court calendars that prevail today. It turned out that the section on mediation was among the worst of the “weasel words.” It is one of the many places where the act is allowed to contradict itself. There are many specific goals stated and there are a number of time lines decreed by procedure. These are to speed up the process and give parents their day in court as soon as possible. In practice many things can derail the whole procedural train to the detriment of family welfare. Mediation is one of the worst of these.
Mediation is the worst of the weapons, because it looks harmless and is seductive. Parents who are reluctant to bite into the bitter and ruinous fruit of a court battle take a look at that nice red apple dangling before them and they think that it cannot do them any harm. Social workers like to avoid court because a contested case can be costly and go on forever, so they encourage mediation. “Come and talk to us instead and see what we can work out,” they say. The problem is that the balance of power is so uneven that it is like the lamb trying to mediate with the wolf. When one side has all the power and is already combative, you soon realize what a weapon mediation can become. It provides the opportunity to manufacture evidence where none existed previously. Another snag is that if you agree to mediation you sign an agreement to accept a gag order. That means you cannot write to blogs like this or talk to people like me to get advice. If you don’t see it their way, MCFD say you are uncooperative and they cannot work with you. They can adjourn the protection hearing over and over and suddenly it is a year and you are no further ahead. Of course the judges are usually convinced that mediation is “a good thing” and so they are very tolerant of delays as long as the parties are still talking. Everyone forgets about the guidelines of the act and about separation trauma.
All you people who are thinking about entering mediation be warned. You will not drop dead at the first bite of the mediation apple and you will think it may be safe. This is a slow poison that will slowly suffocate you and drive you to despair. It will leave you limp and hopeless and you will wonder how you got there. If you are thinking of mediation, think again.
Ray Ferris is a retired child-protection worker and the author of The Art of Child Protection.