Select Committee on Constitutional Affairs Sixth Report

4  Mediation and the Family Resolutions Pilot Project

19. In its report in the last Parliament, the Constitutional Affairs Committee stressed the fact that adversarial court proceedings were not the best way to resolve complex family disputes. In particular, the Committee was keen to evaluate the Family Resolutions Pilot Project (FRPP), which had just been launched. The Committee recognised concerns expressed by a number of contributors that since the pilot would not be compulsory it would be difficult to achieve the success attributed to the "Florida model" of early interventions.

20. The Committee also recommended that greater efforts should be made to promote mediation and concluded that this could best be done through a compulsory preliminary meeting with a mediator, prior to entering the court process.

21. The Government, in its response, did not support even this limited element of compulsion, claiming that it was not appropriate since "mediation is only effective when both parties enter the process freely and willingly".[12]

22. The Government did not address the inconsistency which was raised in the earlier report that while those seeking to obtain legal aid are obliged to consider mediation, those who fund their case privately are not.[13]

23. In relation to the FRPP, the Government said that:

    The Early Interventions (EIP) proposals were taken into account when the FRPP was designed, with relevant aspects of the experience of other jurisdictions, including Florida's, informing the design of the FRPP. In particular, the aspects of compulsion and prescription that are the features of some other jurisdictions were felt not to be suitable in this jurisdiction.[14]

24. These issues were put to the judiciary, who reached a rather different conclusion. In respect of mediation, Sir Mark Potter stated that:

    The difficulties about ordering mediation are two-fold. One is the philosophical point that you cannot order people to mediate; they have got to be willing. I just do not subscribe to that. If somebody is ordered to attend a first mediation hearing it is a very peculiar human being indeed who sits there with his or her arms folded and says, "I'm not going to play" when an experienced mediator gets to work. The other of course is the question of means because if the courts are given power to order mediation as part of the justice system, this is something to which legal aid would have to extend, and that becomes a resource problem for the Government, which I know concerns the Government.[15]

25. Measured by participation level, the FRPP was a failure. The originators had hoped to get 1000 couples to participate in the scheme, however, only 62 couples did so. District Judge Crichton set out a number of reasons for this including:

    [The fact that] it was not ready to start when it did start […] I tried to prevent it starting on the date that it did but I was unsuccessful. I felt very strongly that there should be a very wide sales pitch, if you like, to the family law profession, the solicitors and barristers whose clients would be asked to be coming into this project, and I did not think that we could successfully proceed with the project unless we had them on board, and that did not happen. There was another issue which was more fundamental. In order to get a public funding certificate to contest a contact issue in court, solicitors have to take clients through what mediation means and introduce them to a mediator so that they have an opportunity to understand that this is an alternative. Those who declined to make use of that facility, which is a large number, then filed their application and had the family resolutions pilot discussed with them and they said, "This is more of the same; we have already said we do not want it." So a considerable number of people did not come in for that reason.[16]

26. It was also suggested that people may have sought to evade entering into the scheme by using courts at which the project was not being piloted, although this is challenged by an academic evaluation sponsored by the Department for Education and Skills (see below).[17] District Judge Crichton acknowledged that the scheme had not been compulsory and went on to say that:

    I do not see a difficulty in saying to people, "If you want access to a judge in a courtroom, which is a very expensive facility and not necessarily the best facility to try to resolve your problems, you have first of all to try one of a range of options to see if we can find another solution to your problem", but because we could not do that we got very significantly less people into the project than we had hoped for.[18]

27. As mentioned above, the Department for Education and Skills commissioned its own academic evaluation of the FRPP. Its authors concluded, inter alia, that:

    The pilot was a mixed success, with some of the innovative elements, particularly the group work stage, showing real promise, although referrals and completions were clearly disappointing. The pilot has not produced a clear blue print for the future development of services, but it has provided a number of important pointers for future developments within the family justice system and beyond. In particular, the pilot has underlined the potential of interventions designed to help parents focus on the needs of children and to support effective co-parenting.[19]

The authors highlighted the fact that that:

    There was, however, one critical advantage with the pilot over and above existing interventions. Parents who had completed the pilot were significantly more likely to report that the parental relationship had improved than: (a) parents who did not complete the pilot; and, (b) parents who had just attended in-court conciliation, i.e. existing interventions. This is a very important finding given that the level and nature of parental conflict is one of the most important influences on how children adjust to separation or divorce. It is particularly important given that two recent studies of mediation and conciliation reported little impact on improving the parental relationship. Even so a third of parents who completed the pilot reported no change in relationships and the qualitative data suggested that the intervention was most effective with what were probably the easier cases. The pilot cannot, therefore, be seen as a magic bullet that is likely to work in all cases.[20]

28. The results of the Family Resolutions Pilot Project (FRPP) appear to support the view that if more people are to be diverted out of the court system, a degree of compulsion may have to be used. In its report in the last Parliament, the Constitutional Affairs Committee recommended a compulsory preliminary meeting with a mediator. This is not the same as compulsory mediation, but would allow people to see whether mediation is suitable for them. We believe that it would be advantageous if the Government were to conduct a trial of this scheme. We note that where people are seeking legal aid they are already expected to consider mediation first. We do not see why this type of compulsion is good for some parents but not others. Part of the role of family law practitioners should be to prepare their clients for this as a normal part of the family proceedings process.

29. Measured by participation level, the FRPP was a failure. The main difficulty seems to have been convincing people to enter into the scheme in the first place. We recognise that the judiciary continue to support the scheme. However, if resources are to be dedicated to it, we believe that it should be run on a compulsory basis.

12   Cm 6507, para 14 Back

13   HC 116-I, paras 84, 93 and 94 Back

14   Cm 6507, para 30 Back

15   Q57 Back

16   Q57 Back

17   Evaluation of the Family Resolutions Pilot Project, Liz Trinder, Joanne Kellett, Jo Connolly and Caitlin Notley, Research Report No 720, University of East Anglia, March 2006, pg 39 which indicates that: "An analysis by the Department for Constitutional Affairs found no evidence of an increase in applications in neighbouring courts". Back

18   Q57 Back

19   Evaluation of the Family Resolutions Pilot Project, Liz Trinder, Joanne Kellett, Jo Connolly and Caitlin Notley, Research Report No 720, University of East Anglia, March 2006, p 7 Back

20   Ibid, p 6-7 Back

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