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Family Mediation – The option of first resort for separating couples?

Amina Somers, a consultant and mediator with Goodman Ray, asks whether the implementation of the Family Justice Review recommendations will see the court usurped by mediation as the primary dispute resolution process following relationship breakdown.

Amina Somers, Mediator and Consultant, Goodman Ray





















Amina Somers, Consultant and Mediator at Goodman Ray Solicitors

Earlier this year at a Law Society Family mediation event1 the former Justice Minister, Jonathan Djanogly MP, was reported as saying of family disputes:

"[O]ur experience is that too many people still approach a solicitor for a court resolution in the first instance when a dispute arises and mediation is a secondary issue for them."

The implicit suggestion is that such an approach should be reversed: mediation first – lawyers and court second.

Taken overall, the recommendations contained in the final report of the Family Justice Review ("FJR") published in November last year clearly support this aim. However is such an aspiration realistic and would the implementation of the recommendations (as accepted by the government) achieve the necessary cultural shift?

The FJR recommendations
There can be no doubt that the FJR recommendations aim to achieve a cultural shift from separating couples retaining lawyers to do battle in court to collaboratively engaging a mediator to facilitate resolution.

Amongst the many recommendations of the FJR to be implemented by government there is to be compulsory attendance at a Mediation Information and Assessment Meeting ("MIAM") by all applicants prior to making a court application with judges retaining the power to order both applicants and respondents to attend and to "make costs orders where it is felt that one party has behaved unreasonably" [para. 4.115].

Further and more tantalisingly the mediator "tasked with the initial assessment (Mediation Information and Assessment Meeting) would need to be the key practitioner until an application is made to court" [para. 4.115].

The latter derived from a recommendation in the interim report that "the mediator…. will need to be the case manager until an application to court is made". The FJR was obliged to clarify what this meant. The Family Mediators Association for one found it "puzzling that the FJR should label those who might provide a case management service as mediators" [para.4.98].

The FJR offered a clarification by explaining that mediators were not expected to manage cases in the same way as the court. Rather [para.4.99] their only additional function should be to "track the progress of the parties to the point where they decide or not to apply to court" – for example to reduce the risk of a party using mediation tactically, i.e to drag out contact cases.

Otherwise no further light is shone on what might at first glance seem an interesting recommendation.  A literal reading might suggest that the mediator, if the first point of contact, might involve a range of professionals in helping a separating couple devise a mediation process suited to their particular needs. For example, lawyers and other professionals might be brought into the mediation process by the mediator, with the agreement of the parties, to advise them on discrete issues as the circumstances of the dispute demanded.

Many experienced family mediators already work creatively in this way, adopting aspects of other mediation models into the traditional family mediation, to meet the needs of the particular dispute.

This type of approach might also be welcomed by those who agree with the concern expressed in the introductory paragraphs of the private law part of the FJR:

"(which may or may not be right) that lawyers generally take an adversarial approach that inflames rather than reduces conflict" [para. 4.2].

At the same Law Society event Mr Djanjoly was reported as saying that there has emerged in relation to this recommendation an interest in what this will mean for all the different professionals who may interact with clients during the course of separation.

As the meaning of the recommendation is far from clear it is difficult to see how the secondary question of impact on other professionals can be considered.

What is clear is that if a mediator is not the instinctive first point of contact for separating couples, compulsory attendance by a prospective applicant at MIAMs prior to issue of an application will place at least one party before a mediator. The absence of public funding for private law cases will provide a further financial incentive for mediation, increasing the chances of both parties finding themselves in front of a mediator.

However for privately paying clients there will be no such financial incentive.

Cultural change
In the FJR, Resolution and the FLBA expressed the legal professions' doubts about whether more focus on mediation will in fact have the desired effect of keeping more cases out of court: 

"while [Resolution and FLBA] support mediation…[they] do not believe that significant additional numbers of people in relationship breakdown will successfully resolve their differences out of the court setting."

If Resolution and the FLBA are correct the removal of public funding for private law cases will result in increasing numbers of litigants in person and no appreciable change in the number of applications issued.

The use of mediation in commercial/civil disputes may give some clues as to whether the Resolution/FLBA view is more likely than the cultural shift towards mediation envisaged by the FJR and hoped for by the Government.

The experience of mediation in commercial/civil disputes
Mediation in commercial/civil disputes is broadly accepted as having become a more integrated part of the dispute resolution process following the implementation of the Woolf reforms in the 1999 Civil Procedure Rules (CPR). The Woolf reforms placed much emphasis on earlier resolution through the use of pre-action protocols, increased use of alternative dispute resolution processes and more effective case management by the judiciary.

The central idea behind Lord Woolf's reforms was that recourse to court should be the option of last resort.

However did the Woolf reforms, as implemented, achieve their objective? Did they result in a decrease in the number of actions issued and an increase in the number of disputes mediated?

It is outside the scope of this article to carry out an exhaustive review of the available statistics. However the anecdotal evidence suggests that Lord Woolf's objectives of earlier resolution and increased use of ADR have in general terms been achieved but with a consequential increase in litigation costs and the need for furtherreforms on litigation costs, as recommended by Lord Justice Jackson, due to be implemented in April 2013.

Macfarlanes recently carried out a review of the 2011 Judicial and Court Statistics published on 28 June 20122 and note that

"one of the aims of the Woolf Reforms was to encourage parties to view court proceedings as an option of last resort. In this respect the reforms were initially a success and the number of claims issued in the  High Court in London fell from 30,912 in 1998 to 9,769 in 2002."

The Macfarlanes' analysis shows that after a small increase in all cases issued in the High Court, including district registries, in 2003 there was a steady decline in the number of cases issued until 2007 after which there were increases in the following two years.

CEDR (Centre for Effective Dispute Resolution), a leading trainer and provider of mediators for the commercial and other (non family) sectors, carries out regular surveys of commercial mediators' attitudes and experience regarding claims. In 2005 its survey showed that there were 2,700 mediations in its survey sample, an increase of 35% on a similar sample in 2003. The results of its latest survey published in May 2012, based on sampled mediators' caseloads, showed an increase in the number of mediations to 8,000 which CEDR claims represents a year on year increase of about 15%  since its 2010 survey. These figures are based on a survey of a sample population of mediators which may vary year on year. Nevertheless, they do seem to indicate an increased trend in mediation.

Compliance with pre-action protocols is also likely to have impacted on cases settling without going to court or mediation.

A rough and ready analysis suggests that the Woolf reforms do seem to have impacted positively on reducing the number of claims issued in the immediate aftermath of the reforms. If the CEDR surveys represent the situation nationally there has too been a corresponding increase in the number of mediations.

Under the CPR the judges are encouraged to use extensive case management to alter litigation behaviour. Adverse costs orders have been used by the civil courts when parties have failed to comply with pre-action protocols (the purpose of which is to encourage cases to settle without the need to issue proceedings) and have unreasonably refused to mediate. Commercial lawyers have been able to use the courts' willingness to manage cases in this way to their clients' advantage when faced with particularly litigious opponents whose conduct is contrary to the overriding objectives of the CPR.

It would seem that the Woolf reforms (implemented by the CPR) and a willingness on behalf of the judiciary to use effective case management have resulted in a change in litigation behaviour. This seems to have occurred through a combination of factors coalescing in such a way as to produce a greater imperative on both lawyers and clients to consider mediation. More stick than carrot and more the type of stick that threatens both lawyer and client.

CPR and the Family Procedure Rules (FPR)
For the client in civil proceedings the main risk of refusing unreasonably to mediate is an adverse cost order. For legal advisers it is failure to provide the client with proper advice in relation to compliance with pre-action protocols and the need to consider and participate in mediation and other alternative methods of dispute resolution.

There have been a number of civil cases concerned with costs sanctions where the successful party in the litigation has unreasonably refused to mediate. The leading case is Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576. In deciding whether a party had acted unreasonably in refusing ADR, the Court of Appeal identified relevant factors including but not limited to

Typically, in these cases, as in Halsey, the argument relates to whether the court should depart from the general rule in civil cases that the unsuccessful party will pay the costs of the successful party. Family and commercial cases are of their nature different and the costs regimes reflect this difference.
The general rule in civil proceedings (CPR 44.3 (2) (a)) that the unsuccessful party pay the successful party's costs has no application in family proceedings.

However the Family Procedure Rules (FPR) part 28 has similar provisions to CPR 44.3 and 44.5 with regard to the conduct of the parties in proceedings and the exercise of the courts discretion in relation to costs.

CPR 44.3 (1) provides:

"The court has discretion to decide –

(a) whether costs are payable by one party to another;
(b) the amount of those costs; and
(c) when they are to be paid."

CPR 44.3 (4) provides:

" In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including –

(a) the conduct of all the parties;
...."

CPR 44.3 (5) provides:

"The conduct of the parties includes –

(a) conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;"

CPR 44.5 deals with factors the court will take into account when deciding the amount of costs to be ordered in particular CPR 44.5(3) provides:

"The court must also have regard to –

(a) the conduct of all the parties, including in particular –

(i) conduct before, as well as during, the proceedings; and
(ii) the efforts made, if any, before and during the proceedings in order to try to resolve the dispute."

CPR 44.3 (1), (4) and (5) and 44.5 above apply to family proceedings except financial remedy proceedings.

The costs regime in family proceedings is governed by FPR 28. FPR 28.1 provides that:

"The court may at any time make such order as to costs as it thinks just."

The family court therefore has as wide a discretion as to costs as the civil courts.

While FPR 28 excludes the application of certain parts of CPR Part 44 to family proceedings and financial remedy proceedings, it does provide the family courts with similar opportunities for costs sanctions for those parties who do not conduct themselves within the spirit of the FPR, including the furtherance of the overriding objective, provisions that mirror the CPR in many respects.4

In particular FPR part 1.4 provides that the court must further the overriding objective by actively managing cases and FPR part 1.4(2) provides that active case management includes

"(e) encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure".

Further, as already stated, CPR part 44.3 (1) (4) and (5) applies to family proceedings except financial remedy proceedings.

In relation to financial remedy proceedings FPR 28.3 allows the court, in effect, to use costs orders imaginatively following inappropriate conduct namely that

"(5) Subject to paragraph (6), the general rule in financial remedy proceedings is that the court will not make an order requiring one party to pay the costs of another party.
(6) The court may make an order requiring one party to pay the costs of another party at any stage of the proceedings where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them)."

FPR 28.3 (7) sets out the matters the court must have regard to when making a costs order in relation to conduct including

"(e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant".

Therefore in relation to privately paying clients with legal representation the family courts already have the means to use costs sanctions to influence litigation behaviour, including the behaviour of legal advisers.

Like their commercial counterparts, family lawyers may have to become accustomed to advising clients of the adverse costs consequences involved in refusing to consider or take part in mediation or other alternative dispute resolution processes should the family judiciary start mirroring the behaviour of their civil counterparts either on their own initiative or at the request of one of the parties.

The FJR certainly seems to have had this in mind when recommending that

"judges should retain the power to order parties to attend a mediation information session and Separated Parents Information Programmes, and may make costs orders where it is felt that one party has behaved unreasonably" [para.4.115].

However adverse costs orders will have little relevance where the parties are self-represented litigants.

The FJR considered whether there was any merit in introducing "penalties, through a fee charging regime, to reflect a person's behaviour in engaging with Dispute Resolution Services, including the court" [4.109]. While the FJR made no recommendations in relation to costs penalties it did advocate further consideration of them once it became clearer how many participants in MIAMS moved onto mediation.

If, as representative groups like Resolution and the FLBA seem to suggest, the system becomes clogged up with litigants in person then it seems likely that the family courts may have no alternative but to manage cases in a way that will encourage a change in litigation behaviour where they can – ie by the imposition of costs sanctions, arising from conduct, in relation to clients who can afford to pay for legal representation. 

If other case management strategies do not result in changed litigation behaviour for those who cannot afford representation, the idea of implementing a system of cost penalties may become increasingly attractive.

Conclusions 
The forgoing discussion must be viewed in the context of the extensive range of recommendations in the FJR – and the government's acceptance of them - which are designed to enhance access to information and advice for separating couples. It is hoped that this cultural shift can be achieved by educating the public about the support available to resolve disagreements other than by recourse to the courts, encouraging (and making explicit the meaning of) responsible parenting.  This educational focus is to be supported by compulsory Separated Parent Information Programmes prior to the issue of an application as well as compulsory MIAMs.

The desired cultural shift is from court imposed solutions to a state backed expectation that parents and separating couples should expect to take responsibility for sorting out all issues post-separation.

In the longer term, if the FJR recommendations are implemented effectively there must be hope of earlier settlements of disputes and greater use of mediation and other forms of alternative dispute resolution with only the most difficult and complex cases remaining in the court system until final determination.

A final thought that draws on the observations made by Resolution and the FLBA above, is that if mediation is to be seen as the primary dispute resolution option it must be regarded as effective by those who are called upon to use it in this way. Separating couples must have confidence in mediation as a means of delivering a definitive end to the issues that need to be resolved as well a process that enables them to feel that their positions are adequately protected.

In this respect some further thought may need to be given to the traditional family model of mediation which is neither designed, in the case of financial disputes, to deliver an agreed consent order nor include active lawyer participation to facilitate this. There are distinct and important differences between the traditional family and civil mediation models and good and necessary reasons why these differences have come to exist. It might however be reasonable to expect more participation of lawyers in the family mediation process and more opportunity of finality being achieved if mediation is to be seen by clients as a process that enables their positions to be protected and delivering final outcomes where it can.
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Amina Somers was formerly a commercial litigation partner at a top 20 UK law firm and is now a Conflict Resolution Consultant and Mediator. She is also a Consultant and Mediator for Goodman Ray and Goodman Ray Mediation Service.

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Footnotes

[1] The Law Society Family Mediation Event: 16 April 2012.
[2] Macfarlanes: The state of litigation, copyright 2012.
[3] FPR 28.2 (1): Subject to rule 28.3 and to paragraph (2), Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in proceedings.
[4] FPR Parts 1 and 4.