Family Law

End ‘archaic’ court language and be wary of new website spend, urges NFM

The largest provider of family mediation in England and Wales has published its full response to the recommendations of the Government’s Family Mediation Task Force report.

In a letter to Justice Minister Simon Hughes, National Family Mediation (NFM) welcomes measures aimed at transforming the culture of divorce and separation. These include an increase in the fee paid to mediators for Mediation Information and Assessment Meetings (MIAMs) for 3 years, and Legal Aid Agency funding of the non-legally aided person for the first mediation session for 3 years.

The charity – which has already welcomed the call for all MIAMs to be publicly funded – says the report’s recommendation that free MIAMs should run for 12 months ought to be extended to three years to bring it into line with the other measures.

In the response, shown in full below, NFM also:

• Urges Government to take swift action to modernise the ‘archaic’ use of language in much family court literature;
• Cautions against the Government spending money on a new website in view of its poor value-for-money record on similar initiatives of recent months;
• Supports the abolition of fault-based divorce;
• Looks forward to involvement in a recommended working group to improve child-inclusive mediation: NFM services already provide child-inclusive mediation in up to 25 per cent of cases and has a well-established training and accreditation programme.

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Family Mediation Task Force report: NFM response

For the sake of clarity, we have provided our response to each of the Task Force’s recommendations, addressing these in the same order in which they are listed in the Task Force’s report:

• We agree the MoJ should undertake a sustained low level campaign to increase awareness of the benefits of mediation. Early review of the changes implemented on 22^nd April show a mixed response of the Courts to the changes in legislation and we suggest the MOJ focusses attention on ensuring Courts are adequately trained and made aware of the new requirements.

• We fear the MoJ consideration of the creation of a single web presence and help line could prove an imprudent use of public money. Our scepticism is fuelled by the poor track record of the effectiveness of government websites generally, and in recent times the efforts of the MoJ. For example, when resources were ploughed into creating what was supposed to be a single mediator search facility on a revamped FMC website, all unqualified private providers are listed and swathes of non-profit accredited mediators were excluded in error. This has still not been resolved. The very high cost of the Sorting Out Separation app for meagre public interest and ROI is also a worrying precedent.

• The NFM national telephone helpline is the single largest portal for divorced and separated people, taking over 1,400 calls per month. As the largest provider of family mediation, a small investment into our helpline would enable us to provide enhanced services that provide information about a range of divorce and separation support services that could include: how to make an application to court; child maintenance arrangements; debt finance and property services; child arrangements planning, and referral to a range of emotional support services. This would keep families that do not need to be there out of the statutory system and help the government achieve its major policy objectives.

• We absolutely agree that the Government should consult with the Family Procedure Rule Committee to revise the unhelpful and archaic use of language in court literature. There is an urgent need to do this. We share concern at Ministerial level that the C100 form emphasises the exemptions rather than encourages alternatives to the court process unless, of course, the form itself is designed as a deterrent.

• We wholly support abolition of fault-based divorce.

• We fully agree that MoJ should pay for all MIAMs, but we fear limiting this to a period of twelve months will inhibit the ability of such an initiative to transform the culture of divorce and separation. In view of the following two Task Force recommendations each being for periods of three years, we believe the period of free MIAMs should also be for three years.

• We agree the fee paid to mediators for MIAMs should be increased for a fixed period of three years.

• We agree the LAA should fund the non-legally aided person for the first single session mediation for a period of three years.

• Whilst we agree that the £200 settlement fee for obtaining a consent order once an agreement has been reached in mediation should be increased to £300 for financial and all issues cases only, we believe the training of solicitors should include much closer working with mediators. It could be argued that if they did so, the current £200 settlement fee would be sufficient.

• We are unclear about the recommendation that the LAA consider waiving the second eligibility test so that the initial eligibility test would continue to be valid for six weeks following initial checks by the mediator. In the current assessment criteria the evidence has to match the date the form is signed, so it is unclear why it is felt that two weeks would make a difference. Most people’s payment cycles, salaries/benefit payments/ statements are made monthly, so straddling assessment over six weeks could make the assessment process even more complicated.

• We support the recommendation that mediation should be an exempt service for the purposes of the Residence Test

• We agree that consideration should be given to a capital disregard for mediation cases analogous to the over 65s disregard. In supporting better outcomes for children, we would like to see the assessment of capital disregard and allowances removed where children are living in the family home that is the subject matter of dispute. An alternative might be to consider introducing the statutory charge that would make services free at the point of access with costs recoverable on settlement in mediation through the statutory charge.

• We wholly agree that the MoJ should review the process to give clarity about the future role of assessment, SPIPs and MIAMs to build on what works and to promote inter-agency partnership working with the client as the central focus. There is a major disconnect between SPIPs and MIAMs and this constitutes an enormous missed opportunity.

• We fully agree that the MoJ should review with the FMC by the end of this year whether and how far the McEldowney recommendations have been implemented and what further action is required. We believe all mediators should comply with a single standard of accreditation and that this will improve the professional qualification and recognition of family mediators and we wholly support the recommendations of the McEldowney report. We share many of the taskforce concerns in this regard however only if mediation becomes a statutory service could a completely integrated approach to standards, qualifications, accreditation and a common charging mechanism be applied. It is naïve to consider that we should all be working together on price fixing when we are all in competition for our businesses.

• We agree the MoJ should clarify the elements of the LAA contracts with mediators that would enable it to achieve its strategic objectives. The LAA has been inflexible about developing service delivery options which could better meet client need and inconsistencies around audit has led to different outcomes depending on where a service is audited.

• We cautiously agree that the Law Society and the SRA should consider whether regulations should enable solicitors to see both parties together where they want that. We believe this might be particularly helpful where legal advice is required on the options developed in mediation, however, the solicitor must be able to demonstrate s/he understands what mediation can achieve, and is supportive of mediated outcomes. At present it is far too common and far too easy for solicitors to disregard and undermine mediated outcomes in favour of their commercial interests

• We strongly disagree with the proposal to reduce the threshold for conflict of interest and cross referral from lawyer department to mediation department within the same firm. A fundamental precept of mediation is its independence from the legal process whilst guiding couples through the issues to be negotiated including legal issues. To allow this will cause a further reduction in the take-up of mediation as one party whose legal representative is inviting the other party to participate in mediation in his/her firm is seen as already partisan. This reduces the scope of mediation to a mainly legal settlement-led process whereas in independent mediation services, especially NFM services, a range of practitioners is available to meet client need. It is common in NFM services for the team of mediators to be drawn from a range of backgrounds including lawyers, psychologists, social workers/ family court advisors, therapists and financial experts.

• We wholly support the creation of an interdisciplinary group to improve training and supervision and registration in child inclusive mediation. NFM already has a child-inclusive model and our services are already providing child-inclusive mediation in up to 25 per cent of its cases across England and Wales. We have a well-established training and accreditation programme in this area, which understands and addresses specific requirements for mediators who want to undertake child-inclusive work. We would therefore welcome the opportunity to be included in this important interdisciplinary group.