Family Law Mediation: Dead Man Walking
This is a post by Sarah Phillimore from a talk delivered to the Western Counties Branch of the Chartered Institute of Arbitrators on 27th April 2016
In the ‘Virginia Lawyers Weekly’ from April 2016 I read an interesting article by Chris Macturk.
In Tomorrow’s Lawyers, Richard Susskind writes, “It is exciting and yet disconcerting to contemplate that there is no finishing line for IT and the Internet.”
Susskind’s observation is equally applicable to the future of family law mediation. Like the Internet itself, there are ever-expanding and seemingly endless options to consider — options born of rapidly evolving applications of new and developing technology and clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost.
Clients’ desires for more access to a greater diversity of dispute resolution opportunities at a lower cost
That one sentence for me sums up the potential problem with promoting mediation upon family disputes. So many assumptions are packed into one short sentence. I think unpicking those assumptions will help me explain to you why I have problems with mediation offered as the solution in acrimonious family law problems.
The drivers behind the push for mediation
Mediation as a form of dispute resolution has a long pedigree. Mediation has for many thousands of years been recognised as a much more palatable option than fighting in out in court. Confucius, who died around 479 BC considered that the “first best” and socially proper way to settle disputes, used by the “superior man,” was by the method of mediation, following the ethics of the “middle way.” This consisted in bringing the disputants to something they both approved as the settlement of the dispute, by means of an intermediary.
That for me encapsulates the heart of mediation as I understand it – it is something the participants willingly engage in, with genuine desire to reach a settlement. The mediator does not impose upon the participants a framework other than basic courtesy. The participants will discover in their interactions a solution they can both live with.
This ancient wisdom began to be promoted in the legislative framework around family law with Part III of the Family Law Act 1996 which required those who wanted public funding to at least consider the prospect of mediation.
This was re-stated in the Access to Justice Act 1999 where the criteria set out in the funding code shall reflect the principle that in many family disputes mediation will be more appropriate than court proceedings.
Under section 10(1) of the Children and Families Act 2014, it is now a requirement for a person to attend a Mediation Information and Assessment Meeting [MIAM] before making certain kinds of applications to obtain a court order. There are exemptions to the requirement to attend for an MIAM and I will have a look at these later, as I think these are in interesting window into explaining how and why mediation will often not be the right option in family disputes.
However, even though few could disagree that it must be better to resolve one’s disputes with the aid of a ‘neutral peacemaker’ rather than embark on bitter and expensive legal proceedings, I think it would be naïve to assume that various Governments have promoted mediation because it is less emotionally stressful for participants. It is clear that the primary driver behind the push for mediation is that it was much cheaper than litigation.
As Chris Macturk points out, online dispute resolution has been remarkably effective in dealing with relatively uncomplex commercial disputes and – excitingly – has required no human intervention:
Online Dispute Resolution (ODR) has existed for many years, with perhaps its origin and infancy credited to eBay’s ODR process through SquareTrade which began in 1999. SquareTrade’s technology provides the opportunity for parties to resolve disputes concerning eBay purchases with or without the aid of a mediator.
A staggering number of disputes have been resolved using ODR. Modria, a newer ODR provider, states on its website, “Our founders created the online dispute resolution systems at eBay and PayPal which have processed hundreds of millions of disputes, 90 percent through automation – without human intervention.” While technology can increase access to justice at a lower cost, resolving a dispute over whether a Cabbage Patch doll was really “like new” doesn’t seem to compare to the difficulties presented in disputes involving real children. Even so, ODR is currently being offered and attempted for family law matters.
And here we have the roots of the problem. That far too much weight is placed on mediation as a solution in acrimonious family disputes. It cannot bear this weight and it buckles.
LASPO and what happened afterwards; mediation abandoned
To put the history of mediation applied to family proceedings squarely in context, we need to look at the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If you want a clear summary of the genesis of this Act and its ‘seismic impact’ I recommend the ICRL blog
In essence, this Act removed large areas of law from the scope of legal aid, including private law disputes around children. The most notable impact of this has been the rise in numbers of litigants in person (LiPs), whose lack of legal knowledge and training has in turn caused two further developments;
- cases involving LiPs take far more judicial time to resolve;
- removal of insured and regulated lawyers has caused a considerable growth in the number of paid McKenzie friends (people who can get the court’s permission to attend to help a LiP by –for eg. Taking notes. They can address the court but only with permission). Some of these people are good. Some are terrible. None are regulated.
Matthias Mueller reported in Family Law in 2016 . The latest Family Court statistics published today (31 March 2016) show that the proportion of cases with unrepresented parties is continuing to rise.
The figures published by the Ministry of Justice, covering the period of October to December 2015, show that around the time that the LASPO reforms were implemented there was a marked increase in the number and proportion of cases where neither party are represented, with an equivalent drop in the proportion of those cases where both parties were represented.
The proportion of parties in private law cases without legal representation currently stands at 36%.
A report published earlier this week by the Citizens Advice Bureau, Standing alone: going to the family court without a lawyer, found that 9 in 10 people forced to represent themselves in court claimed that it had a negative effect on at least one other aspect of their life.
Last year the Justice Select Committee highlighted how the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is causing enormous strain on the family courts and poorer outcomes for those going through the justice system. It concluded that the changes to civil legal aid have meant that many people, including those that are most vulnerable, are no longer able to access justice.
But none of this was supposed to happen. What was supposed to happen is that people in disputes over their children would take to mediation. They would finally realise there was a much better way to resolve their problems by expensive adversarial fights in court. The reality however, was starkly different.
Mediator Marc Lopatin had a look at the statistics for an article in Family Law on 24th January 2014:
In 2013/14, the number of mediation starts plummeted by 38% following the removal of legal aid from family lawyers for most family law matters.
Practitioners will recall that in pre-LASPO times lawyers first had to make a compulsory referral to mediation before being allowed to access the next pot of legal aid. As a direct result, there were 13,609 mediation starts in 2012/13. With that requirement removed, this fell to 8,400 in 2013/14.
Not surprisingly, the fall in numbers gave way to a massive £16.8 million under spend by the MoJ on family mediation in 2013/14. One would imagine this to be extremely embarrassing for MoJ top brass given this is one saving they weren’t looking to make!
… Another illustration of policy failure is the paltry amount paid out to family lawyers for supporting clients at mediation with legal advice. The MoJ paid out a grand total of £9,000 to lawyers claiming ‘Help with Mediation’. That’s less than the price of going to court for a many private divorce client. And it should also be a cause for concern given decisions taken at mediation need be informed.
The answer is simple: pay legal family lawyers an acceptable sum to support mediation as a legal adviser. At present, the LAA offers lawyers £150 to perform this function. No wonder unbundled services replaced referrals to mediation in 2013/14.
Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.
So, without lawyers to shepherd clients into mediation, their numbers plummeted by 38%. Those parents deprived of lawyers, were NOT turning to mediation. They were going to court as litigants in person or turning to paid McKenzie friend to help them in court.
The Cafcass statistics bear this out
We can see the impact of LASPO – court cases fall. But then rise again.
• Between April 2013 and March 2014 Cafcass received a total of 46,636 new private law cases. This figure shows a 2% increase compared with the previous financial year.
• Between April 2014 and March 2015 Cafcass received a total of 34,119 new private law cases. This figure shows a 27% decrease compared with the previous financial year.
• Between April 2015 and March 2016 Cafcass received a total of 37,415 new private law cases. This figure shows a 10% increase from the 34,119 cases received in the previous financial year.
In March 2017, Cafcass received a total of 3,907 new private law cases. This is a 16% increase on March 2016 levels. 3,907 rejecting mediation.
What was hoped for – didn’t happen. Why did parents not embrace mediation?
There seems little doubt that mediation by 2013 was well established and known to be successful. For example, in England and Wales, the Civil Mediation Council (CMC) was established in 2003 to promote the merits of commercial and civil mediation, and to represent the interests of mediation providers. Currently, the CMC has a membership of some 70 provider organisations and 400 individual mediators. National Family Mediation asserts that its providers deliver around 30,000 mediations in England and Wales per year, with full agreement being achieved in 83% of cases.
The Family Mediation Council describe mediation simply as:
Mediation can help you stay in control. No-one will make you do anything against your wishes. The mediator will help you find a solution which works for you both and explain how you can make an agreement legally binding.
This sounds great. Who could argue with that? But as we can see from the statistics, there is a worrying indication that people are not seeking mediation but would apparently prefer to be a litigant in person in an adversarial and frightening court environment with which most will be entirely unfamiliar. Why on earth do people do this to themselves?
The exemptions to the MIAM requirement I think provide a useful starting point. These are an interesting blend of practical and emotional difficulties. They emphasise that family disputes encompass a very wide range of personal, environmental and external difficulties – of violence, poverty, lack of transport for example. These are highly unlikely to feature in any commercial dispute.
• You, or the other party, has made an allegation of domestic violence against the other supported by clear evidence, for example either a police investigation or an injunction being issued within the last 12 months. (some mediators tell me they would take these cases; I think they are fools. An abusive person is simply seeking an arena to continue abusing – mediation provides a great arena! Mediation where there is significant imbalance of power is dangerous)
• The application you want to make to the court relates to other family law matters which you are currently involved in.
• An application to the court needs to be made urgently because there is a risk to the life or safety of the person who is making the application (the applicant) or his or her family (for example, their children) or his or her home.
• The dispute is about money and you or your husband, wife or civil partner (the respondent) is bankrupt.
• You and your husband, wife or civil partner are in agreement and there is no dispute. [???]
• You do not know where your husband, wife or civil partner is.
• You wish to make an application to the court but for certain reasons you don’t want to tell your husband, wife or civil partner in advance.
• You are currently involved with social services because there are concerns about the safety and wellbeing of your child or children.
• You can’t find a mediator within 15 miles of where you live, or you have contacted three mediators based within 15 miles of where you live and you are unable to get an appointment with any of them within 15 working days.
• You or your partner cannot access a mediator’s office because one of you has a disability. However, if the authorised mediator can provide the appropriate facilities then you will both still be required to attend the meeting.
• A mediator shows on the court form that mediation isn’t suitable, for example the other person isn’t willing to attend a MIAM.
• In the past four months you’ve tried mediation but it hasn’t been successful. A mediator has to confirm this and state that mediation is not the best way for you to resolve your dispute.
• You or your partner do not normally live in either England or Wales and therefore cannot be considered as “habitually resident“.
To ‘make’ mediation work in many family disputes I think runs a serious risk that mediation will have to develop into something very different and will need to move away from its guiding principle that of voluntary engagement. So whatever it becomes, it won’t be mediation.
Have a look at the Australian experience, in moving mediation on line. Thanks again to Chris Macturk:
Australia’s Family Law Act 1975, as amended by the Family Law Amendment (Shared Parental Responsibility) Act of 2006, provides that all persons who have a dispute about children must make a “genuine effort” to resolve that dispute by family dispute resolution before they can litigate.
The potential benefits of such a law aside, FamilyResolve allows parties to participate in a live, three-party videoconferencing session using a link sent via e-mail in satisfying this requirement. Further, with the use of technology, the mediator has a considerable range of options to help control the mediation session, options which would not otherwise be available in a face-to-face meeting. According to FamilyResolve’s website, “The mediator has the technical capability to allow both parties equal speaking time, to mute a party, so the other party can speak uninterrupted, as well as hide [a] participant’s visual web- cams.”
This is quite a shift from face-to-face mediation and begs the question if a mediator should be able to press the “mute” button or “hide” one of the parties to a mediation.
Whoa. Wait a minute. This isn’t mediation as I understand it. Refusing to allow one party to speak – to ‘mute’ them – seems to me highly inimical to what mediation is supposed to be about – providing a forum for the participants to identify their own solutions.
And I am afraid, this is the beating heart of most difficult family law disputes. It is that people don’t feel heard. And when people don’t feel heard, they often shout louder and dig their heels in harder. And they are often completely irrational, albeit genuine. Family law disputes strike at the very essence of our humanity. You are not just dealing with an argument about who drops the children off where and when. You are often dealing with the whole toxic emotional fall out of a relationship that crashed and burned, taking with it parties’ self respect and hopes and dreams for their entire futures. It’s big! It’s heavy!
Go back to what Marc said, when looking at the woeful post LASPO stats: Taken as a whole, the data makes the clear case for voluntarism over compulsion when it comes to success at mediation.
If what the government was hoping was that mediation could take of the role of state coercion when parents wont agree about what’s best for their children then what we have ended up with is a really frightening example of the law of unintended consequences. We now appear to have the worst of all possible worlds; disputes over children conducted by litigants in person in adversarial court proceedings.
What can we do about it?
Am I encouraging people to rush off to court? Of course I am not. I am not attempting some simplistic binary reduction‘mediation bad’ ‘litigation good’. The court environment is probably the last place that angry, upset people should be. But this idea that family mediation can work only if parties are ‘muted’ or otherwise coerced into attending is to me quite offensive.
Some cases are going to require the formality of the court arena, with both sides being allowed to argue their case and then a judge imposing a decision upon them, with the power to enforce if necessary. Mediators aren’t counsellors. Some people simply bring into the room with them too much emotional pain or denial to allow a mediation to proceed in any kind of constructive way.
And my own professional – and I am sorry to say personal – experience of mediators who claim to be highly skilled at managing this kind of situation, is that they are kidding themselves.
I conclude with the words of family law blogger Lucy Reed
I have many criticisms of how mediation IS – of the rigour and cost of its training, of the effectiveness of its regulation and of its business model and of its suitability for all cases – but those are all things about the *state* of mediation not the principle (or the people). I emphatically recognise mediation as a valuable and effective solution for many families (although not all). There is a place for both law and for mediation. We do not need to set ourselves up in opposition.
Indeed, I recall from my mediator training, in between the torture of neuro-linguistic programming and egg-sucking flipchartery (lawyers are allergic to flipcharts, this is our greatest weakness), we were told that mediation worked best in the “shadow of the law”. This is so crucial. People reach consensual resolution (in or out of court) on the basis of an informed understanding of their options, the risks and the alternatives. The two options of mediation and law are symbiotic not antipathetic (and of course there are many others such as arbitration).
I want to give a small illustration of my perspective of the current climate in which mediation operates before I go on. I recently dealt with a FHDRA at a court running an in court mediation scheme. I won’t give detail but suffice to say that the “voluntariness” of the mediation involved us being told the court had decided we were going to mediate, and the confidentiality of the mediation was entirely breached when the mediator told the court exactly what had transpired without the consent or prior notification of the parties. That is two of the pillars of mediation ridden roughshod over. This I hope is an aberration, but it is for me indicative of how much we’ve lost our way with our evangelism about the promotion of mediation as “the answer”. Mediation is brilliant for some and disastrous for others.
I suppose that all I am asking, is all I ask in every field of human endeavour; that from time to time we lift our eyes from our agenda and look around and ask ourselves honestly – what do we want to achieve? And what is the best way to achieve it?
To accept that mediation is cheap and successful indeed – but only where parties enter into willingly and both desire to reach an agreement. To force mediation upon the unwilling or the angry is a dreadful corruption of the very essence of mediation.