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The Lord Chancellor: My feeling about this provision is that legal representatives may or may not, according to the circumstances, think it right to discuss the various heads of this clause with clients. I have the impression that if one appears to force a completely general obligation of this kind, one may reduce it to fairly meaningless and rather mechanical action. That is my reservation in regard to accepting Amendment No. 122 in principle.

Lord Meston: I thank the noble and learned Lord for that indication. However, a mechanical action is possibly better than no action all. But that is a matter to which I may wish to return. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 123 to 125 not moved.]

Clause 11 agreed to.

Clause 12 [Directions with respect to mediation]:

[Amendment No. 126 not moved.]

Lord Archer of Sandwell moved Amendment No. 127:

Page 7, line 17, leave out ("the parties to attend a meeting") and insert ("each of the parties to attend a meeting, either separately or together,").

The noble and learned Lord said: I fear that I must trouble the Committee at this stage with a group of amendments. It may be appropriate that, when moving Amendment No. 127, I speak also to Amendments Nos. 128 to 131, 133 to 139, 141 to 145A, 147 to 153, 155, 164 and 169 to 171. It looks to be an alarming group of amendments on the face of it, but I hope it will not take as long as its sheer bulk appears to suggest.

We have been assured throughout these proceedings that mediation will be voluntary. Unless it is voluntary it is not likely to be successful. Clause 12 appears to introduce a compulsory element. The parties do not have

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to avail themselves of mediation, but they can be required to attend a meeting to explain what mediation is available and provide them with,

    "an opportunity to agree to take advantage of those facilities".

That is a somewhat puzzling concept. The horse cannot be made to drink but it may well be dragged to the water. That does not seem to be a very promising introduction to the mediation process.

Amendment No. 127 relates to the form of mediation following the direction from the court. Again we find this word which we discussed in earlier debates; that is, the word "meeting". Again it raises the question whether the mediation must take the form of a meeting. If so, will it be necessary for both parties to attend the meeting together or might the court give that direction?

The Committee will recollect, when we were discussing the information session, that we may envisage a case where violence has been present in the marriage and the wife may feel totally intimidated if she has to attend a meeting with her husband. The purpose of the amendment is to offer the court a greater range of options as to the form of mediation which it directs. I hope that it will be possible for the noble and learned Lord to take the view that that can only be to the good.

Amendment No. 129 is to the same purpose. Amendment No. 131 specifically envisages a situation where there has been violence in the marriage. We are troubled at any element of compulsion because it does not seem appropriate, where there has been violence in the marriage, that it should even be open to the court to compel a wife to attend a meeting with her husband or to participate in mediation. That does not mean that mediation would not be available to the parties. It would not prevent them from participating in mediation if they voluntarily chose to do so.

Amendment No. 140, which by some process which escapes me was included in an earlier grouping, is really directed to the same question. If a wife might be compelled to attend a meeting, then she may find the necessity for disclosing that there has been violence in the marriage. Surely there should then be an opportunity, in the absence of the other party, to explain that there has been violence in the marriage. I hope that the noble and learned Lord will not find it inconvenient to deal with that matter although for some reason it was, as I say, grouped with an earlier group of amendments.

As regards Amendment No. 136, it is not clear why, if the court chooses to give a direction, it has to specify who the mediator should be. Why should not the court give a direction that there should be mediation and leave the choice of mediator to the parties, with the proviso that if they cannot agree on a mediator they return to the court? This amendment is intended to give the court a wider range of options as to the kind of direction that it might give.

The present drafting of Amendment No. 137 empowers the court to require someone, presumably the mediator, to produce a report as to whether the parties have attended the meetings and what has been decided. It may well be that the people best able to report on that are the parties themselves. Certainly, they may wish to give a report if only commenting on the report produced

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by the mediator. The amendment is intended to make it clear that the court may require the report from the parties and entails that the parties themselves may report if they so wish.

All these amendments reflect anxieties which have been expressed by the Law Society, the Society of Labour Lawyers and the Women's Aid Federation. I hope that the noble and learned Lord will feel able to address them. I beg to move.

Lord Simon of Glaisdale: The noble and learned Lord said that mediation should be voluntary. I believe that he thereby reflected the general view in the Committee. I would like to put an alternative view. The noble Lord, Lord Irvine of Lairg, earlier quite accurately described mediation as the alternative to litigation and perhaps preliminary as well. What the mediator does is to examine with the parties the matters on which they are still at issue and tries to nudge them so that they see each other's point of view and, if possible, agree. If they cannot agree the matter has to go to adjudication with the mediator, as I have suggested, indicating how far the parties are in agreement and how far they are still at variance.

The noble and learned Lord postulated the difficulty, if it is made compulsory, of a wife who had suffered violence. But why should that be any more so than when they go before the judge? There the husband and wife confront each other and they may glare at each other. Nobody has suggested that adjudication should be voluntary. Indeed, mediation is, as I said, a preliminary alternative to adjudication. Is that very different from a process which the noble Lord, Lord Irvine, would know very well; namely, a summons for direction before a commercial or an Admiralty judge? There the matter can be considered in the presence of the parties without the judge or registrar coming to a final decision, but giving directions so as to narrow and define the issues and thereby shorten and facilitate the proceedings.

That being so, it seems to me that there are substantial advantages in saying that the mediation should be obligatory although, of course, the acceptance of the mediator's recommendation must remain voluntary. Appearance before the mediator seems a necessary preliminary and alternative step to adjudication and although the Chamber is almost a Whip's delight now, I ask the Committee to consider that alternative.

11.30 p.m.

The Lord Chancellor: The quality of the representation in the Chamber is perhaps what matters most and, leaving myself out of the count, I am sure that your Lordships will agree that that is very high.

The purpose of Clause 12 is to give the court a power to require parties to attend a meeting in connection with the possibility of mediation where it appears to the court that mediation is likely to be of some value and where the parties do not appear to have given that possibility sufficient attention in the view of the court. Most of the points made by the noble and learned Lord, Lord Archer, in this connection are worthy of consideration. The intention is that both parties should attend so that the court may see an opportunity for mediation in which

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both parties participate. Although I recognise that there may be situations where the court wants to try to persuade one of the parties particularly to become involved in mediation, the ordinary situation would be that the court, having seen the two parties before it, has taken the view that there should be mediation.

On the point about domestic violence, I incline to the view advanced earlier by the noble Lord, Lord Irvine, and I would trust the judge to use his discretion wisely and not try to hem it around with particular circumstances. Violence that occurred long ago in the past might not be particularly relevant, so I would not wish to produce too many conditions. That said, I am happy to consider the amendments, including Amendment No. 140.

Lord Coleraine: I should like to speak to Amendment No. 139 which stands in my name and which provides a definition of mediation in the following terms:

    "In this section 'mediation' means the process of dispute resolution in marital proceedings whereby the parties, who agree and remain agreed that they believe that their marriage has broken down, voluntarily seek with the aid of a mediator to resolve by agreement any or all of their arrangements for the future".

I do not propose to speak to this at any length, but merely to give three reasons why a definition might be useful. Other more sophisticated arguments could be used. First, there is a great deal of confusion about the meaning of the word "mediation"; secondly, there is no definition in the Bill; and, thirdly, the Shorter Oxford English Dictionary is not helpful. The nearest definition that I can find to what we are considering is:

    "to act as an intermediary; to intervene for the purpose of reconciling".

Clearly, that is not what we have in mind here and I should be glad to learn what my noble and learned friend thinks of that definition and, indeed, whether he thinks that a definition is needed at all.

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