Expert Witness Corner: The Value & Limitation of Mediation In Child Contact Cases

“Every fight is on some level a fight between differing ‘angles of vision’ illuminating the same truth” 

Mahatma Gandhi


In recent times there have been a large number of experts who have advocated the increased use of mediation or ADR (alternate dispute resolution). In fact it has been suggested by Lord Woolf that litigation be considered an option of last resort in Civil Courts. One is prone to agree with this view whether or not mediation of ADR is ultimately successful in resolving, or making just decisions, between disputing factions. While I personally agree with this view, in the case of family problems, mediation can frequently result in failure rather than success.

Unfortunately, ADR, although it should be attempted, frequently fails in achieving a desired end result, especially with family problems such as contact disputes following implacable hostility barring the way to success.  This is most likely to be the case when an absent parent, (mostly fathers), have difficulty in obtaining good contact with their children due to the hostile custodial parent (usually the mother).

A distinction is sometimes made between mediation and arbitration. The result of arbitration is binding in that all parties involved agree to abide by conclusions reached. Psychologists acting as expert witnesses frequently prefer this approach to mediation. This is because no such demands are made with those who participate in mediation such as following the conclusions reached by the mediator or arbitrator. It is in this area that the author has had considerable experience with the Family Courts who have reached certain considerations which are not shared by everyone.

This is that mediation without the “sword of Damocles” hanging over those in dispute is valueless. It must be understood that mediation can only be effective if those in dispute sincerely seek to find a solution and are not intransigent in holding on to their views without considering other points of view. Co-operation and understanding also needs to be sincere, especially in family disputes, that is, contact issues. By this I mean that there needs to be considerable pressure on those in dispute to reach a decision, or be helped to accept a decision, which is then made by the mediator (or perhaps even better by the arbitrator) to be put forward to the Judiciary. The important factor is that some kind of decision needs to be reached. This can be best achieved by the expert witness, having studied those in dispute, putting forward a point of view and providing reasonable arguments for the point of view advocated to the Court.

Steps during the family mediation consist of each party making statements giving their position and why they hold this position. The mediator/arbitrator indicates his independence by noting and acknowledging the individual positions, and by interviewing the individuals in dispute separately, and working toward finding some area(s) of agreement. The areas of disagreement should also be noted and suggestions made as to how these can be changed toward being more  positive . Eventually, after such explorations the parties will be seen together dealing firstly with the areas of agreement. Areas of disagreement, should lead to negotiating the possibility of compromises being reached. Unfortunately this is not always possible in families who harbour implacable hostilities based on emotions such as feelings of anger, rejection, jealousy, selfishness etc. This fact must eventually be reported to the court who must then make the ultimate decisions, hopefully based on what the mediator has found through his efforts.
Hence, “mediation” becomes somewhat of a substitute for justice via litigation because the requirement for mediation is to in some way is to fetter the individuals concerned once they have access to justice. It must be accepted that mediation is not a panacea but should often be tried first before turning to litigation, or to be part of the litigation process. This however, should be complimentary to justice. It cannot ever be a substitute for justice. This  is because one must admit however reluctantly, that with family disputes mediation most often fails. This is because family disputes are caused by powerful, entrenched emotions, especially in contact disputes.
The implacable hostilities between the parties result in efforts to manipulate children and expert witnesses to oppose contact with an absent parent as illustrated by the example which follows. This leads to a “power struggle” with a multitude of trickery being displayed where the children become a ‘weapon’ used by a custodial parent, usually against the non resident parent.
The carrying out of the process of mediation to combat such implacable hostility requires that the mediator communicates to the Court the underhanded and often insincere practices used by the alienator against the alienated parent. Sofly, softly mediation approaches should be used at the beginning of the process. These approaches however, must give way to more firm tactics.

Hence, the frequently underhanded tactics of the hostile alienator must be revealed to the Judiciary who have the final decision to make. These decisions must curb the alienator by providing a true account of the situation, which an often non residential parent has to face. The Judiciary must consider the following:

1.  The long term effects of preventing a loving parent from having good contact with his/her children.
 (a)  Its impact on the absent parent.
 (b)  Its impact on the children caught in the middle.

2.  The long term effects the successful manipulative parent may learn, i.e. has he/she learned that injustice has won the day and implacable hostility has been successful?

The expert witness mediator/arbitrator, being intimately involved with the case, should be able to make suggestions to the court on how to achieve true justice and hope that the Judiciary will both listen and act accordingly. Alas this is not always the case.

The mediator/arbitrator in his/her report to the Judiciary must put forward to the Court the views of the disputants and state where they have found areas of agreement if any, and where they cannot agree and why this is so. The mediator/arbitrator also needs to point out to the Court if any of the disputants have been seen to agree with the possible solutions eventually proposed by the mediator/arbitrator. Let us illustrate this by an actual case, sufficiently disguised for the sake of anonymity.

Case illustration:

Mr and Mrs X have been in dispute over 7 years. At present Mr X has for some time experienced difficulties in having any contact with his two daughters aged 8 and 10. There was implacable hostility between the mother and father, mainly on the mother’s side. She had been given custody after an acrimonious divorce.

The two girls had been imbued over the years with the view that their father could be a danger to them as allegedly he had been to the mother. They had witnessed the father and mother in the past showing extreme hostility towards one another. This even involved physical violence on occasion by both parents towards one another.

All the father wanted was regular contact with both his daughters. He was not opposed to the mother having custody of the children providing she would make it easy for him to see his children by encouraging the two girls to have good contact with him. This the mother professed she had done and claimed that the two girls did not wish to see the father. This was despite the fact that they both had had a good and warm relationship with their father before the parents parted.

The Court ordered that the expert witness (a Psychologist) carry out assessments of the
warring factions. The expert witness found that the mother, while professing she encouraged the two girls to have contact with their father was actually alienating them against the father. The mother claimed that she could do no more with the girls to get them to meet their father. The report by the expert witness to the Court revealed the true nature of events. Five mediation sessions were recommended by the expert witness to the Court to try to resolve the situation and this was accepted. Following the required mediation sessions, the expert witness reported that the father co-operated fully by supporting the mother and her role as the custodial parent. Mother however, was intransigent, admitting to the expert witness about her reservations in forcing her daughters to have direct unsupervised contact with their father. The mother was not co-operative with the expert witness during mediation and made all kinds of problems including the fact that the expert witness had behave improperly towards her during mediation. This only illustrated her devious nature to those involved in the case.

The Court ordered that the girls be able to see and be with their father and the mother very reluctantly agreed. The mother made a number of demands such as that the girls should phone her regularly “to see how things were going and to make certain that they were safe”. Mother also insisted that the girls not eat the food that the father prepared for them.

Father bought his two daughters clothes and toys and took them on outings to museums and other places of interest. The children were interrogated closely by the mother on each occasion they returned to her from seeing the father. They reported that they enjoyed being with the father and wanted to continue seeing him. This did not give the mother a great deal of joy and she plotted to destroy the contact that the children had established with the father. Problems manipulated by the mother followed during the handover of the children to the father. When one of the girls returned home to the mother with a bruise on the arm due to a ‘rough and tumble play’ at the father’s home, in which other children were involved, the mother contacted the police immediately. She also contacted her Solicitor and Social Services. The mother actually knew the truth of the source of the injuries but ignored this as she saw the opportunity to manipulate matters against the father and reported that he personally was a danger to his daughters.

All contact ceased and Police and Social Service investigations took place. The mother lied about what the children had told her about how the bruise had occurred. The father produced witnesses who had seen the boisterous games that were played and which the two girls were seen to enjoy. Despite the girls explaining matters, the Court as a result of a report from Social Services held that the father should cease having contact with his two daughters due to this incident. This was despite the fact that the expert witness after having completed his assessment and mediation sessions, considered that the best course of action, due to the mother’s manipulative and dishonest nature, was for the father to have custody of the two girls rather than the mother as the mother was working totally against any kind of way of rehabilitating the father with his daughters.

The expert witness felt that the decision by the Judiciary was totally unjust when the Judiciary decided that father should for the time being have no contact with his children. The father had done nothing wrong to warrant such a decision. The Judge was undoubtedly influenced strongly by the Social Worker who considered it in the best interest of the children to be in the care of their mother without their father being involved. He also felt that the animosity between the parents affected the children adversely. The Social Services also felt that there may have been an element of doubt as to whether the children were actually safe in being with their father on the basis of the minor injury one of the children suffered when playing at the father’s house.

It was clear to the expert witness that the Judge failed to have the courage to transfer custody of the children to the father, with whom the children began to resume a good relationship. Manipulation, deceit and injustice, as well as implacable hostility had won the day.

The case highlights the difficulties facing lawyers too. It’s one thing to find an expert witness with the necessary expertise to help your client but another thing entirely to get the just result, and this applies even in court-appointed cases.

This is but one example of injustice committed in the Family Courts. The current expert witness believes that the presence of a well-balanced Jury could do much to provide better justice than is currently the case in the Family Courts.

Dr Ludwig Lowenstein is an experienced clinical, educational and forensic consultant psychologist based in the South East of England. You can view his profile and find an expert witness at X-Pro UK, the innovative expert witness directory.

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The End of the Zodiac Mystery – How Forensic Science Helped Solve One of the Most Infamous Serial Killer Cases of the Century

Temecula, CA (PRWEB) May 20, 2014

Many past attempts have failed to pinpoint the true identity of this infamous killer. A new book, The Most Dangerous Animal of All: Searching For My Father and Finding the Zodiac Killer by Gary L. Stewart with Susan Mustafa, released on May 13, 2014, provides compelling evidence, including Wakshull’s handwriting comparison, that the real killer—Stewart’s birth father—has finally been identified.

After years of investigation by Stewart to prove the Zodiac was not his father, he was forced to accept the truth of his parentage. Handwriting analysis was the final tool used to confirm this reality.

Forensic Document Examiner, Michael Wakshull of Q9 Consulting, Inc., was engaged to analyze known writing samples from Stewart’s father and compare them with the many letters and envelopes sent to newspapers in Northern and Southern California by the Zodiac killer.

Wakshull said, “I’ve worked on many document examination cases, and it’s not often that I find handwriting that matches so closely. My formal finding is ‘virtually certain’ that Earl Van Best Jr. was the real Zodiac killer.”

The End of the Zodiac Mystery takes the reader through the methodology used to solve the case.. The book includes Wakshull’s actual writing comparisons, explaining the nuances he used to make his determination. Readers will see complete copies of the Zodiac’s writings, as well as the original detailed report Wakshull provided to Stewart and Mustafa.

Upon receiving Wakshull’s 65 page report, Stewart said, “As I stared at the exhibits [Wakshull had] generated, I got chills. He had overlaid my father’s handwriting onto the Zodiac’s, and the results were stunning. I had that final piece of evidence—forensic evidence that would stand up in a court of law.”

The book is available at both and on

ISBN: 978-0-9857294-2-4 Print

ISBN: 978-0-9857294-3-1 Kindle

ISBN: 978-0-9857294-4-8 EPUB

About the Author: Michael Wakshull, president of Q9 Consulting, is a civil and criminal court-qualified forensic document examiner providing services throughout the U.S. Cases include authentication of handwritten and computer-generated documents. Wakshull holds a Master of Science in technology management, a graduate school certificate in forensic document examination and has spoken at the World Congress of Forensics in China. He authors and presents document examination courses for minimum continuing legal education (MCLE). Wakshull is a member of the National Association of Document Examiners, Interim president of the San Diego Chapter of Forensic Expert Witness Association (FEWA), ASTM International, and a senior member of the American Society for Quality.

A National Speakers Association member, he is available to speak on these subjects.


Expert Witness Corner: The Use of Experts in U.K Commercial & Construction Cases

There is a risk attached to the use of experts in the service of the Tribunal. The expert, the person experienced in the business or techniques of the dispute, can start a cold breeze of logic and common sense blowing through the dusty rooms of the law.

Involve an expert and you involve someone to whom the truth and the facts are more important than the tactics and games. More seriously, you involve someone to whom justice and fairness are more important than the esoteric details of positive law. Someone whose frustration, at the obfuscation found in much modern legal practice, sometimes may result in steps towards the truth being taken much more quickly than billing practice normally would permit.

My lawyer friends should be warned that, by bringing an expert into the service of the tribunal, whether as a member of a tribunal, as a sole arbitrator or as the tribunal’s own expert, they have a tiger by the tail.

Let me recapitulate briefly: I suggest the characteristics of an expert, and for this purpose I mean an expert in fields other than law, to include: knowledge and experience of his or her field – an expert knows what he or she is talking about; the skills of logic and common sense; an ordinary man’s, or woman’s, sense of justice and fairness; skills of communication and exposition, at least related to the field of expertise and often more broadly related – an expert knows how to express his or her findings or opinions.

Disputing parties, seeking a way to resolve or determine their dispute, may well look at those characteristics and think that they are precisely what is required.

That is right and that is, of course, the original purpose, the raison d’être of commercial arbitration, although a modern observer could be excused for thinking otherwise.

That was how arbitration began in commerce, before the modern structure of nation states became what it is today. Merchants would choose one of their peers, preferably one whose prestige and reputation put him out of the hurly burly of immediate competition, and agree to accept his decision. He was the arbitrator- knowledge and experience, logic and common sense, sense of justice and fairness, ability to communicate his findings. It was all that was necessary. Now is not the time to discuss how the need for control by the State has led to a corruption of the process. I have discussed that elsewhere, and the move towards a globalization of trade eventually may mean a return to the standards of the past, as trade once again passes beyond the grasp of nation-states.

My immediate point is that, far from being an exception to the arbitral process, the use of an expert is the natural, the obvious way to determine a private dispute in a specialist area of trade or professional practice.

That is my starting point. Of course there are trade disputes in which there is some obscure point of law; there are others in which a suitably obscure point of law may be invented. My essential proposition, however, is that most topics in trade and commerce are best understood by people in trade or commerce, experts in the field. That must be so, otherwise they would not be able to trade successfully day-by-day, as obviously they do.

That is why the expert plays an essential role in the service of the tribunal.

I will now turn to the principal ways in which that service may be provided. In the limited time available, I will deal with three categories.

First I will touch upon the role of the expert as a sole arbitrator and the ways in which, if necessary, additional legal support may be brought into the room.

Secondly, I will discuss the expert as a member of a plural tribunal, his or her relationship with others, and the possibility of creating a “dream team” to deal with a specific dispute.

Finally, I will look at the task of a tribunal-appointed expert and the relationship between the expert and the tribunal.

Before doing so, however, I would digress for a moment to discuss the relationship between two fields of law. For want of better definitions, I shall call them Positive Law and Natural Law. Positive Law is what it is. Holmes once said, to an attorney in his court, “This is a court of law, young man, not a court of justice.” A great jurist, leader of the American Realist school of jurisprudence, whose definition of positive law is perhaps the most exact that can be found, he was right. To paraphrase something else he said, Law is no more and no less than the prediction of what a court will decide in practice. I would not presume to argue with that; it is unarguable.

As it happens, although I teach in a Law School, I am an engineer. Engineering is variously described as a useful art or the application of science. The aim of engineers, and I quote the Institution of Civil Engineers in London, is the harnessing of the great forces of Nature in the service of mankind.

Please think about that for a moment. No one is beyond the laws of nature. My colleagues and I serve the laws of nature every day of our lives. If the bridge is not strong enough, it falls.

Engineers know well the famous accident to the bridge at Tacoma Narrows and it exemplified what I want to say. Because of a peculiarity of the wind through the gorge, and the design of the bridge – it was a suspension bridge – oscillations were induced in it and became progressively more severe over a period, eventually it broke and sent at least one abandoned vehicle down with it. The incident led to changes in design to take account of the effects of wind. It was not the first instance of a man-made bridge failing in the wind. The Tay Bridge Disaster, in the nineteenth century was another.

Now, there would have been time, once the Tacoma Narrows Bridge started to oscillate, to apply to the court for an emergency injunction to prevent it. I daresay that it would have been easy to persuade the Judge of the public interest.

But, and this is the point I wish to make, the injunction would not, could not have been effective. The bridge would still fall. Canute demonstrated to his courtiers that all his undoubted power could not cause the tide to turn. Galileo admitted to his inquisitors that the Earth did not move around the Sun. It was res judicata, but nobody told the Earth, and still it moves. That is the nature of the law I serve. Unforgiving, inflexible, certain (but only insofar as it is correctly known). A hard mistress and not one whose rules may be changed by statute, by fiat or by a determination of the court. Natural Law.

And Natural Law governs both material and immaterial matters. There are laws of Physics, Chemistry and Mathematics, but there are also Laws of Aesthetics, of Logic, of Morals and of Human Behaviour. We specialise, of course, and we can learn more of some Natural Laws than we can of others, but none can pick and choose which Natural Law to apply. It applies without our intervention.

Now this may seem a little remote from Commercial Arbitration, but it is not. The principles of the Law of Obligations are essentially Natural Law principles. In Contract, they spring from the logical consequences of the ability to communicate ideas and wishes and, in particular, promises. In other areas, tortious obligations, they spring from the twin principles of free will, which makes us responsible for the consequences of our actions, and our duty to one another, a necessary part of social existence. And Arbitration, of course, is a creature of the promise. It has a foundation in Natural Law. That is fundamental and inevitable. International Arbitration is, by definition, universal; the Laws of nation states, the only positive Laws, are not. I am not here discussing state recognition, that is another matter altogether.

I will deal only briefly with the expert as sole arbitrator. The advantages of trusting a dispute to someone who understands the nature of the problem are self evident, as is the moral strength of an agreement to abide by the judgement of a peer in one’s field of work. There are three aspects which need attention. One is the need for such and expert arbitrator to acquire the appropriate procedural skills, for which training is available. Most senior professionals, in every sphere of activity, have experience of managing meetings fairly. Another is the occasional need for the arbitrator to seek legal advice, which has always been a traditional right, although occasions for it are rare. The third is the problem of transparency, which is overcome by the expert arbitrator setting out, for the parties, such personal knowledge as may be relevant, and inviting them to deal with it if they wish. Expert arbitrators may be in a minority on the international scene today, but there are several of them and there may well be a recovery of numbers as training becomes more widely available.

The advantage of at least one or two experts in a multiple tribunal is also, I suggest, self-evident. That is especially so in modern international arbitration, where the party appointed arbitrators are required to be neutral and not to act as a kind of quasi-advocate for their appointers. Non-lawyers are not accustomed to advocacy and do not have the contentious instincts of the professional advocate. That makes them well suited to a neutral role.

I wish particularly to alert you to the enormous opportunity which the parties have to create an ideal tribunal for the problem they have to resolve. I have called it the “dream team” approach. Imagine, if you will, a build-operate-transfer project, to manufacture ethical pharmaceuticals to be marketed in an area where only imported products have been available. Now assume that disputes have arisen, during construction, about the performance and profitability of the plant.

What I suggest is that the parties and their lawyers could put together a tribunal which comprised, say, a chemical engineer, an expert on project finance and a lawyer familiar with the country where the construction was taking place. Not only would those men or women be able to deal with their respective fields. If given the opportunity, they would create a collegiate team which would be able to discuss issues from widely differing points of view, bringing a synergy to the arbitral process. The whole would be greater than the sum of its parts.

That is what I had in mind when I spoke of the relationship between the members of a tribunal. It is a collegiate relationship, between colleagues, not a relationship of contentions.

Now I turn to the service which the expert may give as witness or investigator for the tribunal. I will not deal with experts appointed as members of the legal teams of the parties; others will discuss that role.

Various legislation covers the appointment of a tribunal expert. The English Arbitration Act of 1996 refers to advisors, assessors and experts, but does not differentiate greatly between them. Distinctions between those roles may be somewhat technical; Article 26 of the UNCITRAL Model Law refers only to experts and, I suggest, sets out the natural requirements for the task. An expert or experts may be appointed – no prescription as to the nature of the expert – and, unless the parties agree otherwise, that expert must be available for examination. The Model Law also imposes a duty of co-operation on the parties.

In any reference, the decision as to whether or not to appoint an expert is a decision of the tribunal. Although the parties have the right to agree otherwise, the tribunal’s discretion is complete, both as to whether to appoint an expert and as to who the expert should be. In practice, however, it often may make sense for the tribunal to invite the parties to agree upon an expert.

The expert’s role is defined by the tribunal, in the light of the views of the parties. Ideally, there should be precise terms of reference, which may take the form of a series of questions. The expert can play a useful role in suggesting additional questions and in drawing up the terms of reference, but the final decision will be that of the tribunal.

The tribunal’s expert is an extension of the power of the tribunal to make enquiry. That was brought home to me by a distinguished professor of law who described a mission which arose for a tribunal of which he was chairman. The field of the dispute was esoteric, and the tribunal could not find an expert in the field who did not have connections with one or other of the parties. There were documents to be examined and enquiries to make. Accordingly, the tribunal appointed a gentleman, not from that field of business, but from a generally similar discipline, to examine the documents, to make the enquiries and to report to the tribunal. Almost an agent de police judiciaire, you might think.

One method of proceeding, which I have found successful, is for the parties to give their reasoned answers to the questionnaire before the expert’s enquiries begin. This gives a structure to the enquiries. Then, the first report is given for their comments and the final report may incorporate the comments given by the parties. That may make unnecessary the examination of the expert before the tribunal, but the tribunal may wish to have the expert present to comment upon any further evidence. Because the expert can be examined, he or she may be relieved of the obligation to ensure that both parties are present at any phase of the enquiry. That can save a great deal of time and expense, but the expert must report upon anything he or she takes into account. The principles of Natural Justice are not suspended for the expert, only made a little more practical. Any basis for the expert’s opinion must be made known, and any documents made available to the expert ordinarily should be available to the parties and the tribunal. An exception may be made for trade secrets; the tribunal may order some material to be shown only to the expert, who may then refer to it in a way that protects the secret. It is a procedure that requires care by both expert and tribunal.

Remember, it is so important that lawyers not only

find an expert witness but are able to find one that not only specialises in his chosen field but also has a working knowledge of how tribunals work. That is crucial.

Professor Beresford Hartwell is an experienced Engineer/Arbitrator/Adjudicator. You can view his Profile and find an expert witness at X-Pro, the innovative expert witness directory.

Weinman & Associates Proudly Introduces Divorce Resort: A Revolutionary Concept In The Peaceful And Dignified Settlement Of Divorce Cases

Austin, Texas (PRWEB) May 29, 2012

Divorce Resort is a brand new concept created as a more peaceful and relaxed way to approach the divorce process. Read more at

The concept is simple: All necessary information is collected by the attorney prior to the weekend. During the weekend, the Divorce Resort attorney mediates all issues of the divorce (including both children and property issues) for the first two days, allowing the couple to take full control over their own future and to brainstorm creative solutions that will fit their unique family. All agreements made regarding their children and their finances are reduced to writing in formal court documents to be entered with their local court after the weekend.

If emotions run high, the Divorce Resort attorney will call a time-out and allow the parties to take advantage of whatever amenities the resort offers to help them calm down, relax and come back to the table.

If there are any issues left after two days of mediating, the Divorce Resort