I’ve been working in and around family and child law for more than 30 years, during which several different UK governments and departments have discovered family mediation, as if the first time. ‘Mediation is quicker, cheaper, less stressful, more empowering’ etc etc. Unfortunately, an unintended consequence of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 removal of legal aid provision for legal advice and representation was the near extinction of the existing mediation services. The Coalition Government at the time had been warned by practitioners that this would happen, because separating couples need to be advised about the possible benefits of mediation and be referred to an appropriate service by a lawyer, to follow it up. The government carried on with removing access to that advice, regardless. Mediation services shrank considerably. Although legal aid is available for mediation sessions themselves, the rates are so low, few organisations can afford to be legal aid providers. Most family mediation is charged privately.

In this context, I wasn’t sure what to make of the title of a speech given on 28 September by the President of the Family Division, Sir Andrew McFarlane – ‘Relaunching Family Mediation’. I approached it in hope there may be some progress beyond a Minister thinking it sounds like a jolly good idea. (Disclosure – I’m a trustee of a family mediation charity, so I’d genuinely love to see some progress.)

Here are some highlights from the speech (the annual John Cornwell Lecture – John Cornwell was an original partner in the firm Dawson Cornwell and had founded the National Family Mediation Association in 1986). Despite little apparent development since ‘What About Me?’, the President said that ‘there are clear signs that some of the tectonic plates are shifting, or at least signs that the pressure is building so that a shift may soon take place.’

Signs of change cited by the President

1. The pressure on the court system of the volume of cases has increased the urgency of more options.
2. The judgment in K v K that emphasised the MIAM requirement. We wrote about that here.
3. A group of judges, solicitors, barristers and mediators has been meeting over the summer to produce a report on improvements that might be made to the MIAM process, including extending the compulsory element to both parties.
4. This report will shortly be considered by the Family Procedure Rule Committee.
5. A range of different approaches to mediation are emerging.
6. The JUSTICE working party is publishing its report on 13 October.
7. The ‘pathfinder’ pilots in North Wales and Dorset.
8. The (previous) government’s commitment to mediation, exemplified by funding the Mediation Voucher Scheme.
9. A government consultation issued in July on introducing compulsory mediation in some civil claims

Should mediation be compulsory in some family cases?

While acknowledging the problems of associating an element of compulsion in an extra-judicial process, the President said:

‘In England and Wales we have already embraced the concept of requiring one of the parties to take the preliminary step of attending a MIAM. Whilst this is one important step short of embarking upon mediation itself, it could be argued that the justice system has already extended itself into this space and any further development is a matter of degree rather than principle. In circumstances where, as I have suggested, the current MIAM scheme is not working as intended, there is a need to consider making changes.’

Recent reform in Australia

A requirement was introduced a year ago in the Australian family court that directs couples to out of court settlements including negotiation through lawyers, collaborative practice, conciliation, mediation, FDR and arbitration. The expectation is that both parties will continue to look for opportunities to resolve disputes both before and during proceedings. Secondly, a project called The Lighthouse Project aims to reduce the risk of family safety issues, while parenting matters are progressing through the court. This has three core features:

1. Risk screening through the ‘Family Doors Triage’, an online questionnaire in which litigants can raise their safety concerns with the Court.

2. Case triage: referrals to the appropriate support services and appropriate case management pathway.

3. Specialist Case Management pathway: a pathway for high-risk litigants which focuses on early intervention and timely resolution under the leadership of a Judge-led multidisciplinary team.

The President refers to a forthcoming evaluation of this project.

Should mediators be more directive?

The President recognised the school of thought that mediators remain non-directive and neutral, but he suggested that some mediators might feel they could move away from ‘principled, pure mediation, approach, which affords priority to the autonomy of the parties.’ He added. ‘Separating parents and partners are entering an alien world and are likely to welcome information about the legal ground rules and some understanding of what a ‘normal’ outcome to a dispute such as theirs might look like.’

This is a controversial area. Mediators have traditionally seen themselves as facilitators, not advisers.

The role of mediators

The President says:

The size of the profession has adapted to the current level of demand and it would be difficult for it to cope immediately with a very sudden upturn in numbers. If that is right, then the time to address that issue is now. Even if there is no more significant reform, at the very least there is going to be a tightening up of the MIAM requirements and an increase in the number of such appointments.

I agree. There just aren’t enough mediators. Although a poorly remunerated profession, the qualification route is lengthy and complex.

Furthermore, the President added :

Mediation, legal information and parenting advice should not be presented as alternatives, but as part of a unified whole. Separately, I question whether it is wise for the mediation profession to resist a move to legally assisted mediation, or mediation supported by legal help.

The President clearly envisages a change to the mediator’s role in a MIAM:

The compulsory event should be attendance at an ‘IAM’ rather than a ‘MIAM’. That is, the meeting to which both parents should be required to attend should be with a generalist professional who can impart information [‘I’], guidance and advice [‘A’] more generally about parenting after separation, or, as it may be, resolution of financial issues. The advice would include basic neutral advice about the law and the legal structure. It should, in my view, also include a description of ‘what normal looks like’ …

The professional conducting the IAM might be a mediator, a lawyer, social work [presumably this was meant to say ‘social worker’ or ‘social work practitioner’] or otherwise have sufficient skill for the task. Where there are domestic abuse or safeguarding issues, the IAM could refer the matter immediately back to the court. If mediation is to follow, it would be undertaken by a different mediator. The IAM should be supported by readily available web-based resources so that both before and after the meeting parents can read and watch material aimed at improving their understanding of their position and how best to face the future.

Comment

The current Lord Chancellor, Brandon Lewis, like Mr Raab, is a lawyer, although it’s difficult to spot his field of expertise and what his views of ADR might be. According to Legal Cheek, he has never actually practised at the Bar. We don’t know whether his predecessor’s enthusiasm for mediation might have resulted in a long overdue increase in legal aid rates for mediators; more investment in training; and a legislative push – further than that in the Children and Families Act 2014, currently under Parliamentary scrutiny toward compulsory mediation.

Compulsion does however seem to be the way the tectonic plates may be moving. The Law Society Gazette highlights the President’s call for a ‘rebrand’ of mediation in his speech, because ‘What mediation offers is a structured and safe environment in which those in dispute can discuss and hopefully resolve their problems. It is professional help with problem solving.’ I’m left wondering where all this ‘professional help’ will be found. By ‘social work’, perhaps the President is envisaging an expanded role for Cafcass and local authority social workers – but do they have the time and the legal expertise? And where are the possibilities for expanding mediation services if they are not financially sustainable? Although Legal Futures leads with the idea of ADR being conducted by ‘generalist lawyers’, I’m not aware of numbers of non-specialist lawyers sitting around waiting for work.

Enforcing engagement with mediation, or any form of ADR, won’t be possible if there aren’t enough professionals available to meet demand.

Image: ‘Relaunch’ – Creative Commons at Wikimedia

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