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12.93The Social Welfare Department, if it is to operate a mediation service at the Family Court, needs to ensure appropriate guidelines for separation of these functions.  Those who would become mediators should cease their roles as investigators and court reporters.  They would need to build up experience in their new professional role, and this will be delayed if they are continuing to perform a court reporter role, albeit with different families.  The families would trust the mediation service more if it is a separate service.  Thus, if the dispute could not be resolved by mediation, the court reporters would not have access to the mediator’s files to prepare a report for the court.  We accept that there are resource implications, as different types of staff may be dealing with the one family.

12.94The role of the social welfare officer as investigator or expert to the court is separate from a counselling or mediation role.  We recommend that the Social Welfare Department establish appropriate guidelines to separate these functions.  We recommend, by a majority of members, that a court mediation service should be established, staffed by professionally qualified mediators separate from the social welfare officers who carry out the service of executing social investigations and reports for the courts.

Other professions

12.95Equally, a qualified mediator should not embark on counselling the client or otherwise engage in therapeutic tasks, as there will be confusion of roles.  It is also necessary for the Law Society to draw up guidelines to ensure that a solicitor does not mediate a case where he has previously represented one of the parties, and that there is a clear separation of function between a solicitor acting as a mediator and acting in the capacity of a solicitor.  Similar guidelines may need to be drawn up for barristers.

12.96Other professionals involved in counselling or therapy, whether working in governmental or non-governmental agencies or privately, should adopt similar guidelines.  We also recommend that other bodies such as the Law Society and the Bar Association should draw up appropriate guidelines to ensure the separation of roles of lawyers as lawyers, from lawyers acting as mediators.

12.97The Boshier report recommended that, in difficult cases, some means of obtaining specialist input from psychologists or senior social workers while a mediation is ongoing may be needed.  This would be “to help the parties focus on the needs and wishes of the children.”1239  It also recommended that the mediator could, at the parties’ request, seek a report on the children from another professional.1240  This might assist in settlement.  We recommend that family mediators have access to facilities to obtain an expert’s report, with the parties’ consent, to assist in difficult cases concerning disputes over children.

Working Party

1239 At 5.7.9 of the Boshier report supra.

1240 Paragraph 5.7.9 and 5.7.10 respectively of the Boshier report.

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