Operation of the Family Courts - Justice Committee Contents

Written evidence from National Family Mediation (NFM) (FC 39)


1.1  National Family Mediation supports the implementation of compulsory assessment meeting with a mediator for all who wish to apply to the court.

1.2  Funding to integrate family mediation more roundly into the family justice system needs to be made available to expand the supply of qualified family mediators by re-prioritising existing budgets.

1.3  With the reduction in LSC franchised family lawyers the family justice system will need to invest in promotion and awareness raising of the services available to support families at the point of divorce or separation.


2.1  National Family Mediation (NFM) is the only voluntary sector provider of family mediation.

2.2  NFM is the national body that supports 48 local family mediation providers in England and Wales.

2.3  NFM has been delivering family mediation services for 29 years. It is a founding member of the Family Mediation Council, the regulatory body for family mediators.

2.4  NFM is the lead training body of family mediators.

2.5  NFM services provide family mediation in all issues, child contact and residence disputes and all associated applications of Section 8 of Children Act 1989 plus finance and property matters. NFM services provide other related support services that enable parties to separate amicably.

2.6  NFM is a national provider of the Separated Parenting Information Programme. This programme is provided under the Children Contact and Adoption Act 2009 contact activities requirements.

2.7  In this consultation NFM is responding to points (ii), (iii) and (iv) specifically.


3.1 Point (ii)  The impact on court proceedings and access to justice of recent and proposed changes to legal aid

NFM Response—Current changes taking place in relation to contracting with the Legal Services Commission (LSC) are likely to have a profound impact on the delivery of legal services to families experiencing relationship breakdown both in public and private law proceedings. The LSC has effectively halved the number of family law solicitor providers but have maintained the number of matter starts. The geographical spread of contracted family lawyers will be much reduced. This will create difficulty of access for the general public. The impact of these changes on court proceedings is likely to increase the number of litigants in person attending court much earlier in the process and without having attempted to resolve issues before proceedings are commenced.

Family mediation is dependent on referral from LSC franchised solicitors. Our experience shows that when solicitors withdraw from publicly funded work they stop referring to mediation even when referral might be in the client's interests. This is because there is no mechanism currently in place to compel referral.

The forthcoming government spending review whilst looking at cuts across all departments, will also consider reducing the over all legal aid bill. This might include changing the means tested eligibility criteria. In previous years reducing the threshold of eligibility produced an overnight drop of 20% of cases referred to family mediation. Correspondingly the numbers of applications to court have increased as have all the associated costs but most importantly the cost to the public at large of not having access to alternatives such as mediation has increased. The average cost of divorce is now £14,000 per person (Norwich Union "Cost of Divorce" survey 2006) money which could be better spent setting up a new home for the respective parties and their children.

4.0 Point (iii)  The role, operation and resourcing of mediation and other methods in resolving matters before they reach court

4.1  NFM Response—NFM wholly endorses the proposal to make assessment with a mediator to consider suitability for mediation compulsory before an application can be made to a court. This would ensure all, both private and publicly funded clients, have access to information about family mediation. Family mediation cannot proceed if only one party attends and currently the majority of private paying clients do not attend:

  • 1.  Because they are not aware of the service because their legal advisor is not obliged to tell them;
  • 2.  For fear of incurring further costs; and
  • 3.  Because there is little awareness of family mediation and how it can help.

The benefits of family mediation are however well documented. In 2007 the National Audit Office (NAO) report Legal Aid and Mediation for People Involved in Family Breakdown examined the reasons for the low take up of mediation and made recommendations to the LSC. The executive summary states:

"Family disputes that are resolved through mediation are cheaper, quicker and, according to academic research, less acrimonious than those that are settled through the courts. Despite these advantages, only some 20% of people who are funded by legal aid for family breakdown cases (excluding those involving domestic violence) currently opt for mediation."

The findings were that family mediation saves time and costs:

  • The average cost of legal aid in non-mediated cases is estimated at £1,682, compared with £752 for mediated cases, representing an additional annual cost to the taxpayer of some £74 million.
  • Mediated cases are quicker to resolve, taking on average 110 days, compared with 435 days for non-mediated cases.

The NAO made a number of recommendations to increase take up of mediation but growth in publicly funded mediation has been slow. Case numbers have increased by approx 1,000 per year since the NAO report was published. The total number of publicly funded mediations for the period 2007-09 was approximately 13,000 p.a. The total number of petitions filed during the same period was approximately 128,000.

The savings in time and costs should provide sufficient incentive to increase the use of family mediation but in addition there are enormous social and welfare benefits to be accessed through increased use of family mediation.

In more recent times the Legal Services Commission supported a pilot project for six months to deliver "In-Court" mediation (LSC In-Court Mediation for Family Disputes Research and Evaluation Report published August 2010)

Key Findings

  • Where mediation took place 71% of parties reached a full agreement or were able to narrow some of the key issues in dispute.
  • 73% of parties who were referred to an assessment meeting with a mediator proceeded to mediation even though mediation itself remained voluntary.
  • In 43% of the cases clients had not previously considered the use of mediation, which suggests there are a considerable number of clients who could potentially benefit from the use of mediation once provided with the opportunity to do so. This highlights the importance of increasing clients knowledge of mediation at the outset of a case.

In conclusion the LSC have decided not to support roll out of national "In Court" delivery because the costs are too high despite the positive outcomes. In our estimation the costs are high at this point because of lack of awareness of family mediation, the under utilization of the resource during the pilot and an inability of the justice system to change or accommodate new working practices.

Working relationships and partnerships between NFM and CAFCASS have disappeared over the last 10 years. In very recent times NFM has been working with CAFCASS to deliver on its behalf court ordered Separated Parent Information Programmes (SPIP). This has forged new links but means that much ground has been lost with regard to NFM services supporting the private law work of CAFCASS Family Court Advisors. CAFCASS analysis of private law cases indicates that 30% could benefit from mediation instead of Section 7 reports. These are cases where no risks have been identified but through protracted litigation and adversarial proceedings, cases have escalated.

Finally, NFM's own research (Consumers perception of family mediation October 2009) confirms that few people understand the process of divorce and even fewer have heard of family mediation. By changing the court procedures to ensure that all applying to the court attend a compulsory meeting with a mediator, awareness of the service provided will increase.

Resourcing family mediation will be key to transforming and supporting the family justice system. Since the implementation of the Family Law act 1996 and subsequent Access to Justice Act 2000 the growth in mediation has been slow. Changes to legal aid, the total reliance on referrals from family solicitors and a general lack of awareness about family mediation have kept these numbers down.

The NAO report considers the dis-incentives on legal aid family law practitioners to refer to family mediation. These dis-incentives apply equally, if not more so, to the non legally aided petitioners who incur the greatest costs in their divorce and separation. As a consequence of slow growth and reliance on solicitor referral mediation services have remained relatively small. At the same time the family courts have become overwhelmed with cases, and backlogs and delays are worse now than ever before.

By supporting compulsory assessment of family mediation and incorporating family mediation more roundly into the family justice system, and by providing unfettered access to family mediation we would confidently predict that the numbers of mediations taking place would increase. The family justice system would reap early benefits by a reduction in the backlogs and delays currently experienced and be able to focus its resources on the cases that most need judicial intervention. To achieve this however, in conjunction with procedural changes, better partnership working arrangements also need to be in place with CAFCASS.

The NAO report, The LSC In-Court Mediation Evaluation Report and CAFCASS own case profile analysis demonstrate that a large percentage of cases are not being provided with services such as mediation in a timely manner. The subsequent cost to the court, the judicial system, other government departments and wider society is increased as a result with, in some cases, catastrophic consequences for families.

NFM and its member services provide a full range of services that include family mediation in all issues including children, finance and property. They also provide additional services to support parents and children through counseling services and child inclusive mediation. At the point of assessment mediators are considering the welfare of the client and his/her family in the broadest sense and consequently all NFM services have good links, connections, referral and partnership procedures to ensure clients get the support and information they need to move forwards.

5.0 Point (iv)  Confidentiality and openness in family courts, including the impact of the recent changes in the Children, Schools and Families Act 2010

5.1  NFM Response—The implementation of the Children Schools and families Act 2010 took place amid intense debate about "openness and transparency" in the family court.

NFM supports the findings of The Children's Commissioner for England report on: "The views of children and young people regarding media access to family courts."

The findings of the report confirm:

  • Almost all of the children and young people (79% in the public law sample, 91% in the private law group) were opposed to the decision to permit reporters into family court hearings.
  • The major reason for this was because the children and young people said that court hearings address issues that are "private". They concern events that are painful, embarrassing and humiliating for children and an overwhelming majority said this detail was not the business of newspapers or the general public.

Furthermore the children said that knowledge that their case might be reported might impair their ability to speak freely to professionals for fear of exposure and this might mean that the courts were attempting to make difficult and crucial decisions about a child's future without complete information.

If more families are attempting mediation this risk of exposure through the media could be reduced significantly as cases would not enter the court arena. For the remainder however it remains a concern that details of divorce separation or public law care proceedings and adoption can be reported in the press.

The level of frustration experienced by parties who engage in court processes seems to centre on a lack of understanding about the court process and the ultimate outcome. This is not surprising given the general public's lack of awareness of the process of divorce or separation. As part of the review we would recommend the court service provides information about its services and a glossary of terms that the lay person can understand.

Referring again to NFM's own research few understand the process of divorce therefore it could reasonably be expected that they do not fully understand a court ordered outcome.

September 2010

previous page contents next page

© Parliamentary copyright 2011
Prepared 14 July 2011