Family Law

A version of the below article was published in the August 2014 issue of Family Law. An exclusive article by Anne Barlow will appear in October Family Law.

See also:

• A Barlow, ‘Out-of-court family dispute resolution: the lessons of experience’ published in the Family Law Special Issue in May [2014] Fam Law 620
• A Barlow, ‘Mapping Paths to Family Justice: a national picture of findings on out of court family dispute resolution’ in March [2013] Fam Law 306.

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The Mapping Paths to Family Justice study, authored by Anne Barlow, Rosemary Hunter, Janet Smithson and Jan Ewing, has been an independent 3-year ESRC-funded academic research project undertaken by the Universities of Exeter and Kent, beginning in July 2011.

The project’s central aim was to provide much needed evidence about the awareness, usage, experience and outcomes of the different ‘alternative’ or ‘out of court’ Family Dispute Resolution processes (FDRs).

When the project was designed, the principal methods of resolving disputes without going to court were solicitor negotiation, mediation and collaborative law and these are therefore the study’s focus.

Against this background, a Briefing Paper sets out the study’s aims and methods before reporting on the main findings to its research questions.

The following are excerpts from that paper.

Background and Aims

The overall aim of the study was to undertake a ‘bottom up’ comparative analysis of the most common forms of out of court FDRs, to provide a substantial, up-to-date evidence base. More specifically, its objectives were: to provide an up-to-date picture of awareness and experiences of three forms of out of court family dispute resolution:

• solicitor negotiations;
• mediation;
• collaborative law;
• to produce a ‘map’ of family dispute resolution pathways and consider which pathways are most ‘appropriate’ for which cases and parties;
• to consider which (if any) norms are embedded in these different processes;
• to provide research evidence to inform policy and consider best practice.

Since the 1990s, successive governments have promoted mediation as a preferred means of resolving family disputes out of court, yet traditional negotiation between the parties’ solicitors with the aim of achieving an agreed solution without going to court, remained the most common way of settling disputes. Although the Family Law Act 1996 Part II (

The ‘other side’

There is a strong tendency to blame the other side for failures in FDR. While mediation and collaborative law consciously attempt to overcome polarisation of parties, they often engage in polarisation of processes, with a highly negative image projected onto court proceedings.

Comparing FDR processes

• It is clear that the different processes have different strengths which suit different parties and cases. 
• Failure in one FDR process can put people in a better position to reach a resolution through a different process; but sometimes it was clear that no form of FDR was likely to be successful.

FDR outcomes: resolution rates

• Financial disputes are easier to settle out of court through any FDR process than children issues. 
• In this study, Mediation achieved higher resolution rates than Solicitor Negotiation but has traditionally attracted lower conflict cases. 
• The incidence of Collaborative Law was too low to compare statistically, but seems to achieve high resolution rates particularly on financial matters.

FDR outcomes: satisfaction

• Satisfaction with outcomes is lower than with process for both Mediation and Solicitor Negotiation.
• Satisfaction with Collaborative Law is very high for both process and outcomes, although numbers are small and parties tend to have higher than average resources.
• Partial or subsidiary outcomes (‘fringe benefits’) were identified even where FDR failed, in around half of the cases in each process, although partial outcomes were often a source of dissatisfaction.
• The lack of enforceability of a mediated agreement other than through court order was a source of dissatisfaction by the majority in mediation, as well as a reason to choose court or another FDR.

FDR outcomes: settlement factors

• Agreed fairness of outcome by both parties was the best settlement trigger, but often hard to achieve.
• There were more levers to achieve financial pragmatism in FDRs than to settle children disputes with shared perceived satisfaction.
• A process of attrition or general exhaustion and desire for closure, as well as a strong desire to avoid court or an inability to afford court proceedings, all play a role in settlement for some parties in all FDRs.

Cases that did not resolve

• Not all cases can be resolved by FDR processes. For some, pursuit of ‘justice’ or what they perceive to be the right outcome is critical and trumps the expediency of a compromise settlement.

Improvements in communication following FDRs

• Mediation and Collaborative Law can often improve communication between parties, as can Solicitor Negotiation, although this is less common.
• Failed Mediation and Solicitor Negotiation can both produce a deterioration of communication and heighten conflict, but there is some evidence that failed Solicitor Negotiation may also succeed in providing ‘fringe benefits’ in some cases.

Settlements

• The norms which are brought by parties into FDR and drive perceptions of fairness divide along gender lines.
• Different norms apply to children and financial disputes.
• Parties felt more steered towards outcomes in financial disputes as compared with children issues.
• Practitioner interviews indicate that both lawyers and mediators assess proposals in terms of the parameters of what a court might order, but the shadow of the law is more apparent in financial disputes than children disputes in all FDRs.
• Regardless of the norms brought into the process by the parties, their ability to reach a resolution is dependent on either sharing normative views or being able to reach a compromise position.
• Formally equal division of children’s time and of assets were both common outcomes, but may not objectively be in children’s best interests or meet the financial needs of the children and their primary carer. There is an argument for practitioners to subject such proposals to greater challenge.

Parties’ experience

• One size does not fit all. In particular, some cases are not suited to mediation but may be suited to other FDRs; and some cases are not suited to any FDR.
• Suitability for FDRs depends very largely on the disposition of the parties rather than the nature of the case.
• In a context in which mediation is effectively the only choice, mediation needs to adapt to provide more tailored and specialised services.

Through their interviews with parties and practitioners and their analysis of recorded sessions the researchers identified a number of best practices in FDR, many of which are highlighted in throughout the Briefing Paper which also provides a comprehensive, consolidated summary of the best practices identified.

Policy implications

A final section draws out the implications of the study’s findings for government policy on family justice. These include the policy changes that would be necessary in order to support fully the best practices identified in the Briefing Paper.

Fault-based divorce

In FDR parties are encouraged and supported to be as cooperative and conciliatory as possible. Yet in every FDR process dealing with divorce, there comes a jarring moment when the lawyer(s) or mediator(s) have to broach the issue of the grounds for divorce, and the fact that if the parties want to resolve financial issues and move forward now rather than waiting for two years, one of them will have to accuse the other and the other will have to accept the accusation of either adultery or unreasonable behaviour. In some of the study’s recorded sessions, the capacity for this legal requirement to upset and antagonise parties and to disturb the equilibrium of the dispute resolution process was witnessed at first hand. Government’s promotion of non-adversarial approaches to family disputes needs to be underpinned by a non-adversarial – ie no fault – divorce regime.

Appropriate dispute resolution

Government has a legitimate interest in encouraging people to resolve family disputes out of court, and in minimising public expenditure on private family disputes. In addition, it should have an interest in promoting and maximising the well-being of children affected by parental separation. Beyond that, however, its role in the ‘market’ for dispute resolution services should be facilitative and supportive rather than directive or partisan. This would entail:

• Clearly recognising solicitor negotiations as a form of out-of-court dispute resolution, which may be more appropriate than mediation in some circumstances (see above) and may be freely chosen at least by non-legally aided parties. 
• Encouraging and supporting the Law Society and Resolution to promote the message of non-adversarial, out-of-court family dispute resolution among their members. 
• Supporting and encouraging collaborative work between lawyers and mediators, and in particular supporting and encouraging solicitor referrals to mediation, and mediator referrals for legal advice. 
• Revising the way MIAMs are conducted (see below) 
• Revising public information materials on family mediation (see below) 

The role of family courts

While court proceedings should indeed be seen as a last resort for most separating couples, it also needs to be recognised that they are the first and most appropriate resort in some categories of cases, as identified above. Further, the realistic ability to commence court proceedings is an important ‘bargaining chip’ for some weaker parties, in particular to bring a reluctant opponent to the negotiating table. It also needs to be recognised, therefore, that lawyers sometimes issue court proceedings as an aid to settlement rather than as an end to settlement (e.g. where a party is refusing to respond to correspondence, doing so unreasonably slowly, or resisting financial disclosure). The policy image of court proceedings as inevitably constituting bitter, drawn-out, expensive and destructive battles is exaggerated and unnecessary. A more balanced understanding and portrayal would be welcome.

Promotion of mediation

The Ministry of Justice and the Family Mediation Council have recently released new public information materials on family mediation. However, these materials still rely on anti-lawyer and anti-court stereotypes, e.g. referring to ‘big legal fees’ and ‘long drawn-out court battles’. Although the materials also note that people can seek legal advice alongside mediation if they feel the need for it, and that some cases (e.g. involving domestic violence or child abuse) may need to go to court, the messages on lawyers and courts are mixed. The authors of the study take the view that there are enough positive reasons to promote mediation without having to rely on negative stereotypes. Lawyers and courts should be acknowledged as having different but necessary roles in the FDR system.

MIAMs to DRIAMs

Based on our findings, we suggest that MIAMs should explain the full range of dispute resolution options to those experiencing family breakdown, and offer a genuine choice of processes, guided by the suitability criteria identified in the study. For this reason, MIAMs should be renamed DRIAMs (Dispute Resolution Information and Assessment Meetings). In order to encourage attendance and not deter non-legally-aided parties they should be free (i.e. publicly funded) for everyone. And they should be provided independently of substantive dispute resolution services. This would remove the conflict of interest created by the fact that the MIAM provider has a material stake in the party’s choice of FDR options, which may result in inadequate screening, inadequate explanation of alternatives, and clients feeling they are being subjected to a ‘hard sell’. DRIAMs might therefore be offered by a range of accredited providers. They should be offered individually by default. For legally aided clients the DRIAM should incorporate initial legal advice, given either by the DRIAM provider if they are qualified, or by a co-operating legal advisor. Non-legally-aided clients wishing to enter mediation should be encouraged to seek initial legal advice and referred to a co-operating legal advisor if they do not have their own solicitor.

Closing the ‘LASPO’ gap

Following the LASPO Act, parties whose cases are not suitable for mediation but who are not eligible for legal aid are left in limbo. Either they are taken into mediation regardless, their problem remains unaddressed, or they are compelled to represent themselves in court. Each of these options poses risks for the parties and for any children concerned. The elimination of this gap should be a policy priority. There are a number of ways in which this might be done, and the Briefing Paper’s authors suggest a combination of strategies could and should be pursued.

• A lawyer-assisted and supported model of mediation should be developed, tailored to the specific needs of domestic abuse cases (where there is a history of controlling behaviour but the evidence required to obtain legal aid is lacking) and of other vulnerable parties. 
• Where a party has attended a DRIAM and the DRIAM provider certifies that the party is below the means threshold but the matter is unsuitable for mediation, that party should have access to public funding for out-of-court solicitor negotiations or collaborative law. (Public funding in this context needs to be sufficient to provide a good quality service with a view to resolving the matter out of court, bearing in mind that the matter is considered unsuitable for mediation.) 
• Where a party has attended a DRIAM and the DRIAM provider certifies that the party is below the means threshold but the matter is unsuitable for any form of out-of-court dispute resolution, that party should have access to public funding for court proceedings.

In this way, the public funding system will support and direct appropriate avenues of dispute resolution, while minimising recourse to court proceedings because viable out-of-court alternatives are fully available.

Regulation of mediation

Finally, the researchers endorse the recommendations of the McEldowney Report for the regulation of mediation, which we suggest should include the development of an accredited specialisation scheme for mediators along the lines currently operated for family lawyers by Resolution and the Law Society. Continuing professional development requirements for all mediators should also be put in place to ensure that best practice is updated and regularly shared by all.

The full Briefing Paper can be downloaded here.