Written evidence from National Family
Mediation (NFM) (FC 39)
1.0 EXECUTIVE
SUMMARY
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.
2.0 INTRODUCTION
TO NFM
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.
3.0 EVIDENCE
ADDRESSING TERMS
OF REFERENCE
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
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