Written evidence from Lisa Parkinson[24]
(FC 14)
THE WORKING OF THE FAMILY COURTS ON THE ROLE,
OPERATION AND RESOURCING OF MEDIATION IN RESOLVING MATTERS BEFORE
THEY REACH COURT
EXECUTIVE SUMMARY
1. The role of mediation
Mediation assists parties in dispute to resolve issues
and reach agreement with the help of an impartial third party.
Litigation compounds conflict, whereas mediation reduces it, empowering
people to reach their own decisions without the need for adjudication.
Agreements reached voluntarily are more likely to last. Compared
with court proceedings, mediation delivers better outcomes, faster
and at lower cost.
2. The operation of mediation
Extending compulsory attendance at mediation information
and assessment meetings to all family cases (with limited exemptions),
prior to court application, would increase take-up of mediation,
reduce court waiting lists and hearings and resolve more disputes
over children at an early stage. After issue of proceedings, courts
should operate a triage system to channel suitable cases to mediation.
Mediation could also be used in some public law children cases.
3. The resourcing of mediation
Effective mediation needs to be properly resourced.
Consumers accept professional charges for mediation to avoid high
litigation costs. Public funding of mediation should also be maintained
because its cost-effectiveness has been demonstrated in reducing
legal aid and court costs and in its benefits for families. Requiring
attendance at mediation assessment meetings prior to court application
in all family cases would increase take-up and produce further
net savings.
4. Alternative Dispute Resolution (ADR)
Appropriate Dispute Resolution would be a better
term. Dispute resolution requires integrated systems.
5. How do conciliation and mediation differ?
Independent, confidential, out-of-court mediation
on all issues, including finance and property, differs from court-directed
conciliation on children issues provided by Cafcass. The legal
privilege attaching to mediation needs to be established in line
with the European Directive on Mediation 2008 to cover the mediation
process and provide immunity for mediators from being called as
a witness, except in rare circumstances where public interest
requires it.
6. Is mediation cost-effective?
The National Audit Office found that "mediation
is generally cheaper, quicker and less acrimonious than court
proceedings and research shows it secures better outcomes, particularly
for children
On average a mediated case takes 100 days to
resolve and costs £752, compared to 435 days and £1,682
in cases where mediation is not used." (NAO Review of Publicly
Funded Mediation, March 2007).
7. Mediation and children
Researchers in Australia found lasting reductions
in levels of conflict and improved relationships reported by parents
and children following child-inclusive mediation. An additional
fee should be payable for child consultation in mediation, payable
by parents or publicly funded where applicable.
8. National Standards and Regulation of Family
Mediation
National standards for family mediators' training
and accreditation and regulation of practice should be maintained
to ensure public confidence and accountability.
9. Mediation in European Law and International
Use of Mediation
Directive 2008/52/EC on Mediation, European Parliament,
21 May 2008 seeks commitment from all Member States to support
mediation and increase opportunities to refer to mediation, recognising
that "agreements resulting from mediation are more likely
to be enforced voluntarily and are more likely to preserve an
amicable and sustainable relationship between the parties".
Mediation in cross-border child abduction cases has been shown
to settle cases within time-frames set by international conventions.
Cases should be referred to mediation prior to or following court
application.
1. The role of mediation
1.1 Mediation assists parties to resolve disputes
and reach agreement with the help of an impartial third party.
Litigation compounds conflict, whereas mediation reduces conflict
in facilitating out-of-court settlement at an early stage, without
litigation and adjudication.
1.2 The family courts and Cafcass are acutely
overloaded. Legally aided court proceedings involve high costs
and long delays. Mediation assists separating/divorcing couplesincluding
unmarried and same-sex couplesto reach financial settlements
and agreements that take account of children's needs as well as
adult needs.
1.3 Mediation addresses all issues in dispute
in family proceedingschildren (residence, contact and parental
responsibility), property, division of assets, pensions, maintenance
and debts, also grandparents' contact with grandchildren. Mediation
is not counselling or therapy. The focus is on reaching agreements
with co-operation over children.
1.4 Under the Children and Adoption Act 2006,
courts may order attendance at an initial mediation information
meeting as a contact activity. It is estimated that out of 100,000
adults caught up in contact disputes in the courts every year,
about a third may be suitable for mediation.
2. The operation of mediation
2.1 Currently, individuals seeking legal aid
for family matters must be referred to a contracted family mediation
service for mediation information and assessment before legal
aid can be obtained for court application. Under the Willingness
Test, if Party B is unwilling to attend an information meeting
or declines mediation, or if mediation is unsuitable in the circumstances,
a certificate signed by the mediator is sent to Party A's solicitor
or to both solicitors, to enable granting of legal aid for court
application. Parties may attend the initial information meeting
separately or jointly. Referrals to Bristol Family Mediators Association,
mainly from solicitors, for mediation information and assessment
meetings increased from 282 in 2000 to 758 in 2009.
2.2 At the initial meeting, the mediator establishes
the issues in dispute, explains the mediation process, assesses
eligibility for legal aid and screens for domestic violence and
child protection issues. Mediation may be suitable despite a previous
incident of domestic violence, but not where there is continuing
risk of violence or child abuse. Mediators must report children
at risk to the local child protection agency.
2.3 According to LSC data there are 50,000 publicly
funded referrals to family mediation services per year in all
types of case - financial, children and other issues. This number
could be increased if some exemptions are removed from solicitors'
requirements to refer clients for mediation information and assessment.
Public awareness of mediation is still low. When parents in one
study were asked what they thought would have been helpful to
them and their children, "many mentioned mediation or
a mediation-type service, with most unaware that such services
already existed. A common misconception, for example, is that
mediation is only for couples who want to reconcile, rather than
reach a mutually-agreed separation arrangement" (DCSF
January 2010 Green Paper on Families and Relationships CM7787).
2.4 Participation in mediation is voluntary and
requires the willingness of both parties. Take-up of family mediation
has increased substantially but remains low at 14,000 mediations
per year. Parties do not need to be evenly balanced for mediation
to work well. An even balance is rare and mediators are accustomed
to managing different kinds of power imbalance. Information about
the mediation process at initial meetings can allay one party's
anxieties of being bullied or pressurised by the other. Two mediators
co-mediating as an interdisciplinary team may be helpful in some
circumstances.
2.5 A Consent Order is needed for a final, legally
binding financial settlement in divorce. The solicitor dealing
with the divorce prepares a draft Consent Order based on the Memorandum
of Understanding drawn up by the mediator. No court hearing is
needed and legal costs are kept to a minimum. Lawyers normally
advise clients alongside the mediation process and rarely seek
to amend or undermine terms of settlement in the Memorandum of
Understanding. Couples who are separating but not divorcing can
ask their lawyers to draw up a Deed of Separation based on the
Memorandum of Understanding.
2.6 Following issue of proceedings, court referral
to mediation filters out cases capable of settlement, even where
mediation has been tried previously. Courts cannot order mediation
but can refer with consent and can order attendance at an information
and assessment meeting as a contact activity. According to a Court
of Appeal judge, "there was no family case, however
conflicted, that was not potentially open to successful mediation,
even if mediation had not been attempted or had failed during
the trial process."(Thorpe LJ Al-Khatib v Masry [2005]
1Family Law Report).
2.7 Courts cannot usually provide suitable facilities
for mediation and the court atmosphere is not conducive to mediation.
The Good Practice Guide-lines annexed to the Research and Evaluation
Report of the In-Court Mediation Trial recommend that "Mediation
Services, CAFCASS and local District Judges/Legal Advisors should
set up early meetings to assist in a shared understanding of mediation
and to help identify and clarify individual roles and boundaries".
2.8 Extending compulsory attendance for mediation
information and assessment to all family cases (with limited exemptions),
prior to court application, would increase the use of mediation,
reduce court waiting lists and hearings and encourage co-operation
over children.
2.9 Greater use could also be made of mediation
in selected public law children cases.
3. The resourcing of mediation
3.1 The family justice system costs the State
over £800 million each year. This is unsustainable and wasteful.
Mediation reduces public expenditure substantially in legal aid
cases (see 6.1.). Private clients pay for mediation at an hourly
rate.
3.2 42% of those surveyed in a National Audit
Office study who had not been referred to mediation said they
would have accepted it, had they known about it. The National
Audit Office estimated that if these 42% had used mediation instead
of the courts, this would have saved the taxpayer £10 million.
Edward Leigh MP, Chairman of the Public Accounts Committee, observed
that "confrontation in court cannot always be avoided,
but the alternative of mediation should be pursued wherever possibleto
the benefit of disputing individuals and the taxpayer".
3.3 The Research and Evaluation Report of the
In-Court Mediation Trial (LSC, August 2010) found "the
mediation at court pilot demonstrated some real benefits to clients
of having mediation services available at court" but
"the funding model used is not sustainable for the LSC as
the average cost to the legal aid fund was four times that of
a settlement mediated under existing LSC contractual arrangements".
Courts could refer more cases to mediation under existing contractual
arrangements.
3.4 Effective mediation needs to be properly
resourced. Consumers accept professional charges for mediation
to avoid high litigation costs. Public funding of mediation should
also be maintained because its cost-effectiveness has been demonstrated
in reducing legal aid and court costs and in its benefits for
families. Requiring attendance at mediation information meetings
prior to court application in all family cases would increase
take-up and produce further net savings.
4. Alternative Dispute Resolution (ADR)
4.1 In 1998 the Lord Chancellor's Department
published a Discussion Paper on Alternative Dispute Resolution
(ADR). ADR is a collective term for alternatives to adversarial
litigation including mediation, arbitration and collaborative
law. Appropriate Dispute Resolution would be a better term.
Dispute resolution needs flexible and integrated systems.
5. How do conciliation and mediation differ?
Independent, out-of-court mediation differs from
court-directed conciliation. Conciliation directed by the
court and staffed by Cafcass is used to settle disputes over children.
The conciliators are officers of the court and outcomes are reportable
to the court.
Mediation generally takes
place out of court and mainly pre-court. Mediators are qualified
professionals with specialised training and accreditation. The
mediation process is confidential and legally privileged (with
exceptions). It is recognised as confidential in the European
Directive on Mediation of 28 February 2008 due to be implemented
by Member States by 2011. Currently under English law, the privilege
attaching to mediation belongs to both parties jointly and may
be waived with their joint consent. This legal privilege needs
to be established in line with the European Directive so that
it covers the mediation process and provides immunity for mediators
from being called as a witness, except in rare circumstances where
public interest requires it.
6. Is mediation cost-effective?
6.1 Mediation is not a universal panacea but
the National Audit Office found that "mediation is generally
cheaper, quicker and less acrimonious than court proceedings and
research shows it secures better outcomes, particularly for children
On average a mediated case takes 100 days to resolve and costs
£752, compared to 435 days and £1,682 in cases where
mediation is not used." (NAO Review of Publicly Funded Mediation,
March 2007).
6.2 The Evaluation Report of the In-Court Mediation
Trial (LSC, August 2010) found that "Where mediation took
place 71% of clients were able to reach some form of agreement.
This clearly highlights the benefits of having mediation available
to parties at a variety of stages throughout the dispute life
cycle, as parties will benefit from mediation at different times".
6.3 Reaching agreement through mediation is a
vital component in maintaining co-operative post-divorce relationships
(McCarthy P and Walker J 1996 The longer-term impact of family
mediation Joseph Rowntree Research Findings 103).
6.4 Research has shown that many parents found
their experience of legal and court systems stressful and ultimately
ineffective in dealing with their issues. The adversarial nature
of the private law system tends to inflame conflicts, rather than
resolve them. Researchers at the University of East Anglia concluded
from their study of children's and parents' experience of contact
after divorce that "existing legal interventions have limited
capacity to facilitate contact or reverse a downward spiral in
contact arrangements. Resources should be redirected towards more
creative work to improve parental and parent-child relationships
rather than repeated attempts to impose a solution" (Trinder,
L. et al. October 2002 Making contact : How parents and children
negotiate and experience contact after divorce Joseph Rowntree
Foundation Research Findings 092).
6.5 59% of those who reached agreement through
mediation said they expected to be able to negotiate any further
changes between themselves (Davis, G., et al. 2000 Monitoring
Publicly Funded Family Mediation Report to the Legal Services
Commission Legal Services Commission, London). The agreement rate
for State-funded mediations increased from 60% in 2005-6 to 68%
in 2008.
7. Mediation and children
7.1 Disputes between separating and divorcing
parents cause great distress to children. Prolonged conflict,
rather than divorce per se, has harmful consequences for children
in the longer term. The longer a child remains out of contact
with a parent, the harder it becomes to re-establish contact.
7.2 In some family mediation services, children
and young people may meet with a mediator or trained child counsellor,
if both parents agree and the circumstances are suitable. International
Conventions uphold the right of the child to be heard on matters
that directly affect the child, 'with these views being given
due weight in accordance with the age and maturity of the child'
(United Nations Convention on the Rights of the Child 1989,
Article 12). An Appeal Court judge has stated: "There
is a growing understanding of the importance of listening to the
children involved in children's cases. It is the child, more than
anyone else, who will have to live with what the court decides.
Those who do listen to children understand that they often have
a point of view that is quite distinct from that of the person
looking after them. They are quite capable of being moral actors
in their own right" (Baroness Hale of Richmond in Re
D (A Child) [2007] AC 619 FLR). However, the question of a
judge interviewing a child is fraught with difficulties, not only
for the child but also for the judge. Older children, especially,
may welcome opportunities to meet with a mediator in private,
rather than with a judge. Researchers in Australia have found
lasting reductions in levels of conflict and improved communication
reported by parents and children following child-inclusive mediation.
Child consultation by a specially trained mediator or counsellor
employed by a mediation service is generally more acceptable to
parents and children themselves than interviews with a judge or
Cafcass. Child consultation in mediation can resolve disputes
over children more quickly, without giving responsibility to the
child.
7.3 An additional fee should be payable for child
consultation in mediation, payable by parents or publicly funded
where applicable.
8. National Standards and Regulation of Family
Mediation
8.1 Part III of The Family Law Act 1996 introduced
state regulation, quality control and public funding for LSC-contracted
family mediation services (Legal Services Commission Quality
Mark Standard for Mediation). Services must satisfy the Quality
Mark Standard and mediators must have passed successfully the
Competence Assessment in Family Mediation. Mediation is increasingly
recognised as a profession in its own right. Most family mediators
mediate on a part-time basis and are also qualified and experienced
as family lawyers, social workers or therapists.
8.2 National standards for family mediators'
training and accreditation and regulation of practice should be
maintained to ensure public confidence and accountability.
9. Mediation in European Law and International
Use of Mediation
9.1 Directive 2008/52/EC of 21 May 2008 from
the European Parliament and European Council on "Certain
Aspects of Mediation in Civil and Commercial Matters" is
to be implemented by Member States by 2011. It seeks commitment
from Member States to support mediation and increase referrals
to mediation in cross-border cases and also in national family
law proceedings. The European Parliament recognises that "agreements
resulting from mediation are more likely to be enforced voluntarily
and are more likely to preserve an amicable and sustainable relationship
between the parties".
9.2 Mediation in cross-border child abduction
cases has been shown to settle cases within time-frames set by
international conventions, achieving agreements much more quickly
than court proceedings. Cross-border disputes over children should
be referred for mediation assessment prior to or immediately following
court application. There are proposals to set up a national register
of trained cross-border family mediators in England and Wales.
The Nobel Peace Prize for 2008 was awarded to Martti
Ahtisaari, former President of Finland. The Norwegian Nobel Committee
praised Mr Ahtisaari's achievements in resolving international
conflicts: "We wanted to focus on successful peace-makers
because this world needs peace-makers".
September 2010
24 (Mrs) Lisa Parkinson, M.A. (Oxon), Certificate of
Qualification in Social Work, accredited family mediator with
Family Mediators Association, recognised by the Legal Services
Commission, 32 years' experience as a family mediator, Mediation
trainer nationally and internationally, Author of books and articles
on mediation published in eight languages, Member of the Family
Justice Council ADR Sub-Committee, Member of the Hague Central
Bureau Group of Experts advising on a Guide to Good Practice for
International Cross-Border Mediation Back
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