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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