Operation of the Family Courts - Justice Committee Contents


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 couples—including unmarried and same-sex couples—to 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 proceedings—children (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 possible—to 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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Prepared 14 July 2011