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Zahra Pabani
Zahra Pabani
Partner - Family Law
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Non-court dispute resolution in family law – why simply emphasising its use is not enough
Date:18 NOV 2019

Over the last two decades, there has undoubtedly been an increased emphasis on using non-court dispute resolution (N-CDR) in family law cases. The Family Procedure Rules 2010 (FPR), the Children’s and Family Act 2014 (CFA14) and the introduction of the Family and Children Arbitration schemes are but the highlights in a clear attempt to push parties towards N-CDR. Some attribute this increasing preference to N-CDR’s many benefits which are noted by the legislature (FPR 2010), the judiciary (W v M [2012] & ALvMT [2013]) and commentators alike (Edwards, 2018, 1221 & Kennett, 2016, 1). Others, more cynically, believe that the increased emphasis is simply a way for the government to balance the budget (Moore & Brookes, 2018, 32) and ease the pressure on a post-LAPSO judicial system that is crumbling from overuse (Stylianou, 2017, 445). Regardless of the rationale behind it, the push towards N-CDR is ever-apparent and in theory should have drastically changed the way family disputes are being dealt with. But what impact has this increased emphasis actually had in practice?

A new approach

For some, the increased emphasis has seen the emergence of a new approach to family law matters. Diduck writes that N-CDR has shifted the nature of family law claims from ‘legal disputes’ to ‘relationship problems’ with the latter having less to do with the laws and principles of justice (Diduck, 2014, 615). A new ‘holistic service’ (Cantwell, 2016, 227) has developed in family law which recognises the importance of emotions and family dynamics in this now transformative process (Agapiou, 2016, 130). As such, effective family practitioners must now focus not just on their knowledge of black letter law but also on their skills and approach (Butterworth Family Law Service, 2019, 19). This is further demonstrated by the increase in multi-disciplinary practices which now include family consultants and therapists (Stylianou, 2017, 445). While these practices are not yet in abundance, their existence demonstrates a more humanised outlook from the legal profession.

No actual change

But for all N-CDR’s celebrated advantages and the support it receives from the legislature, judiciary and practitioners, it appears that there has been no actual change in how the majority of family disputes are resolved. Since the creation of the family arbitration scheme in 2012 and the children arbitration scheme in 2016, there have been only 232 financial arbitrations and 21 child arbitrations recorded (Shepherd, 2019, 452). MoJ statistics show that MIAM levels are at a third of pre-LAPSO levels (Legal Aid statistic Oct-Dec 2018), with the MIAM requirement being met in only 5% of cases that go to trial (Butterworth Family Law Service, 2019, 19). It would seem that, despite the emphasis on N-CDR, litigation is still the main route taken by families wishing to resolve disputes.

So why has there been such little substantive change?

Poor judicial oversight

One argument is that the judiciary are not adequately implementing the rules. The FPR and CFA14 provisions envisaged the judiciary actively directing parties to N-CDR (ibid), with the requirement to produce a MIAM FM1 certificate when issuing court proceedings ensuring this. The judiciary, however, have failed to uphold their ‘gatekeeping’ duties and are not questioning or acting on the absence of a FM1 certificate(ibid). Statistics indicate that 60% of forms miss the signature of MIAM conductors and some practitioners see this simply as a box-ticking exercise (Johnson & Robinson, 2018, 909). MIAMs are crucial to increasing N-CDR use as parties cannot use an option they are unaware of.

Lack of clear information

A similar avenue of thought centres on the lack of information available to those in family disputes. LAPSO dramatically increased the number of litigants in person (Butterworth Family Law Service, 2019, 19) and in 2017 neither party was represented in 36% of cases (Moore & Brookes, 2018, 34). Solicitors signpost N-CDR, as evidenced in the fact that, pre-LAPSO, solicitor referrals accounted for 80% of MIAM attendees, whereas post-LAPSO, they account for only 10% (ibid). Therefore, without solicitors, parties are unaware of N-CDRs or the requirement to attend MIAMs.

There is also such a high volume of material on N-CDRs in the public domain that it is hard for individuals to trust the credibility of the source. Even when people can find information they trust, research shows that this information will often contain complex language and terminology that is difficult to understand (Blakley, 2018, 1057). Rachel Blakey writes how public literature often uses phrases such as ‘can qualify for’ and ‘are eligible for’ rather than simply stating parties ‘can get legal aid’ (ibid). As an even more blatant example, Rachel further notes unnecessary instances ‘bespoke service’, ‘an arduous portfolio’, and ‘accredited’, rather than ‘trained’, mediators (ibid). All of this language alienates an individual from the N-CDR process and pushes them towards litigation as the process is more familiar (Pal, 2017, 141). 

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Lack of education

The lack of solicitor-led referrals to N-CDR can also not be ignored. Rather sinisterly, some believe that the lack of solicitor-led referrals is an attempt to increase fees by keeping parties in litigation (Moore & Brookes, 2018, 34). This school of thought casts the profession in a bad light and a much more likely explanation, is that solicitors have had little exposure to N-CDR and are therefore not comfortable in advising a client on the merits of its use (Thompson, 2013, 624). For many members of the profession, including traditionalist judges, the idea of keeping a client out of court will remain alien (Moore & Brookes, 2018, 35).

Too mediation focused

MIAMs require parties to speak to a mediator about the benefits of N-CDR. Most mediators, however, only practice mediation and so the other methods of N-CDR can be undersold (Charrot, 2015, 126). Even the name MIAM places an uneven preference on mediation as the chosen form of N-CDR for parties (Johnson & Robinson, 2018, 909).

So, what can be done to overcome these issues?

Increasing MIAM attendance

To increase MIAM attendance, judges must start performing their ‘gatekeeping’ duties. Florida judges successfully divert over 100,000 cases away from the courts each year by utilising similar discretionary powers (Scottish Government Safer Scotland Committee, 2014, 16).

Judges could also implement ‘Ungley Orders’ (Halsey v Milton Keynes General NHS Trust, 2014) which force the party considering the case unsuitable for N-CDR to submit a witness statement without prejudice save to cost giving reasons for their belief (Moore & Brookes, 2018, 39). This would allow the judge to encourage N-CDR through cost sanctions. It is noted by Andrew Moore and Sue Brookes, however, that given the general principle of no order save to costs in family cases that this may be an unfamiliar territory for many judges (ibid). Perhaps a more robust approach to parties who litigate for no reason may also need to be adopted.

Additionally, stricter requirements on exemptions to MIAM attendance should be strongly considered. The current list of exemptions, which includes reasons such as ‘have attempted a non-court dispute resolution in the past 4 months’ and ‘other reasons why attendance may be more difficult in practice’, is too open to circumnavigation by parties intent on litigating (ibid).

Furthermore, respondents should be compelled to attend MIAMs as the absence of one party completely nullifies the point of N-CDR which works on agreement between parties (Johnson & Robinson, 2018, 909). This reform has raised some issues concerning an individual’s Article 6 Human Rights in that it creates a barrier to legal proceedings. Arguments of this nature, however, can be easily countered by confirming that it is not a case of ‘one or the other’, rather N-CDR, followed by litigation, where appropriate.

Increasing information

The government needs to do more to attract people to N-CDR and should perhaps look to members of the international community for inspiration.

The Netherlands have tackled this issue by introducing the ‘Rechtwijzer’, or ‘conflict resolution guide’. This centralised website contains clear and unambiguous information on N-CDR as well as an interactive journey that actively signpost relevant N-CDR to that user’s situation (Scottish Civil Justice Council, 2014, 4.2.5).

Interestingly, Australia have removed solicitors as the gateway to family law by introducing ‘Family Relationships Centres’ which divert families away from the court by offering inexpensive N-CDR measures (Kennett, 2016, 10). The reform cost AU$400 million in the first four years, however, the N-CDR scheme in Australia has been described as an ‘immediate, rapid success’ (Scottish Government Safer Scotland Committee, 2014, 20).

Increasing education

The need to train lawyers and the judiciary on the merits of N-CDR remains a key campaign by family group, Resolution (Stylianou, 2017, 445). More needs to be done in making all members of the legal profession comfortable with N-CDR so that its use can become normalised (Johnson & Robinson, 2018, 909).

For an example of this in practice, one should look at the state of Ohio. Lawyers in Ohio have a duty to inform their clients about alternative methods to solving their disputes and so to help them meet this duty, the Supreme Court of Ohio provided training events to the legal profession. The initiative has been hailed as a success in establishing N-CDR by the Scottish Government Safer Scotland Committee (Scottish Government Safer Scotland Committee, 2014, 17).

Shifting focus off mediation

Mediators responsible for MIAMs need to provide a more even-handed assessment of the N-CDR options (Moore & Brookes, 2018, 32). Presently, only accredited members of the Family Mediation council can conduct MIAMs and that immediately creates a barrier to other forms of N-CDR (ibid). Therefore, either mediators need to be educated more on the other N-CDR options available, or the remit for who can conduct MIAMs needs to be widened to allow for all forms of dispute resolution to be fairly represented.

Additionally, the Government needs to move its focus solely from mediation, with some solutions being as simple as changing the name MIAM to AIM - Advice and Information Meeting (Resolution Manifesto for Family Law, 13). It is believed that by doing this, it will at least be clear to the public that there are more legitimate options than just mediating or going to court.

Mandatory mediation in prescribed cases

There is fierce debate surrounding this proposal. Some look to the success of such measures in jurisdictions such as Australia and America in support of the idea (Scottish Government Safer Scotland Committee, 2014, 14). Others, however, believe that initiative would represent a fundamental failure to consider the very nature of N-CDR in that it is a consensual process and that mandatory mediation is nothing but an oxymoron (Agapiou, 2016, 129). While this may be the case, there is evidence to suggest that mandatory referrals do not adversely affect the litigant’s perception of procedural justice or settlement rates and that mandatory mediation programs are much more cost effective (Pal, 2017, 143). With budgets tightening and N-CDR’s current underuse the argument for mandatory mediation is certainly gaining traction.

 

Bibliography

 

Legislation

  • FPR 2010 (SI 2010/2955) PD 3A paras 8-10

     

    Cases

  • AI v MT [2013] EWHC 100 (Fam) Baker J
  • Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576
  • W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679, Mostyn J

     

    Articles

  • Agapiou, A, ‘The co-optation of the techniques and language of alternative dispute resolution: a critical assessment of developments in the UK’ Arbitration 2016, 82(2), 129, 130
  • Butterworth Family Law Service, Issue 224, May 2019, Alternative Dispute Resolution, 6A Narrative, [19]
  • Cantwell, B, ‘Exploring a multi-disciplinary approach to the practice of private law’ [2016] Fam Law, 46 (Feb), 227
  • Charrot, R, ‘Changes in the family law system: can you keep up?’ P.C.B. 2015, 3, 125, 126
  • Diduck, A ‘Justice by N-CDR in private family matters: is it fair and is it possible’, [2014] Fam Law 615
  • Edwards, J, Sandys, A & Gaw, J, ‘How may the law be reformed to improve the uptake and experience of mediation?’ [2018] Fam Law, 48 (Sep), 1221
  • Ferguson, L, ‘Brexit, non-court dispute resolution, and family justice’ [2017] Fam Law, 46 (Oct), 1130
  • Johnson, P & Robinson, N, ‘Mending the MIAMs process’ [2018] Fam Law, 48 (Jul), 909
  • Kennett, W, ‘It's arbitration, but not as we know it: reflections on family law dispute resolution.’ Int. J.L.P.F. 2016, 30(1), 1-31
  • MoJ and Legal Aid Agency, Legal aid Statistics October-December 2018
  • Moore, A & Brookes, S, ‘MIAMs: a worthy idea, failing in delivery’ P.C.B. 2018, 1, 32
  • Pal, S, ‘Current focus on family mediation in the UK: how relevant?’ Arbitration 2017, 83(2), 141, 143
  • Resolution Manifesto for Family Law, page 13.
  • Scottish Civil Justice Council, Access to Justice Literature Review: Alternative Dispute Resolution in Scotland and other jurisdictions (July 2014), para 4.2.5
  • Scottish Government Safer Scotland Committee, Making Justice Work Enabling Access to Justice Project - International literature review of Alternative Dispute Resolution (November 2014), para 16
  • Shepherd, N, ‘Private judging – the rise of private FDRs, early neutral evaluation and arbitration’ [2019] Fam Law, 49 (May), 452
  • Stylianou, K, ‘Family dispute resolution: a state of the nation forum’, [2017] Fam Law, 47 (April), 445
  • Thompson, S, ‘Collaborative law: success or failure?’ [2013] Fam Law, 43 (May), 624
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