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Negotiating in the Shadow of the Court: Mediation in parallel with litigation

Madeleine Reardon, barrister of 1 King's Bench Walk, considers the role of mediation in the course of family proceedings, practical issues arising therefrom and, in particular, confidentiality of the mediation process.

Madeleine Reardon, barrister, 1 King's Bench Walk



Madeleine Reardon, Barrister, 1 King's Bench Walk

This article considers a number of issues arising out of the relationship between mediation and litigation in the context of resolving family law disputes. The first part of the article considers the role of mediation in the family courts: how far are the courts prepared to go to encourage parties to mediate? It goes on to discuss some of the practical issues and problems that can arise when parties are mediating during the course of legal proceedings, in particular in connection with the confidentiality of the mediation process.

Mediation in family proceedings
The essence of any mediation is that the responsibility for decision-making lies with the parties. It is well-recognised, therefore, that private family law disputes are particularly well suited to mediation: separating couples can guarantee that their financial affairs remain private, and as the Court of Appeal has repeatedly emphasised, more firmly on each occasion, the people best equipped to decide what arrangements will work best for children are their parents.

When litigation has been issued or is contemplated, however, mediation takes place against a backdrop of a potential judicial decision. The parties know that if the mediation fails, the court will determine the issue. Inevitably, this colours their approach. Even those who attend mediation with the genuine intention never to go near a court will be aware that they are taking a risk if they make proposals which a court would be unlikely to endorse. Where litigation is actually underway, the mediation process can often feel like a complex and strategic dance, with the parties testing out each proposal against their own best and worst case scenarios, and the likely cost of achieving them.

The role of the mediator
It is a striking feature of family mediation that mediators come from a wide variety of professional backgrounds: the membership of the Family Mediators Association includes therapists and counsellors, at least one ex hostage negotiator (presumably yearning for the relative peace and harmony of his former profession), solicitors, barristers and former/ retired judges.

In my experience, solicitors who send their clients to a barrister mediator, and clients who choose a barrister mediator, often do so because they are looking for someone with day to day court-based experience who will have a fair idea of the court's likely response to the problem. It is not uncommon to be asked directly by the parties, 'what will the judge do?' or to be told, particularly in financial cases, 'we just want to know what is fair'. Redirecting and diffusing these queries takes tact, but is essential: there are other forms of non-court dispute resolution that offer a more directive approach, and it is key to the mediation process that the parties themselves find the solution to their dispute.

Encouragement, coercion, compulsion: how far can the court go?
In 2004, the Court of Appeal held in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 that even if there exists a power in the court to compel unwilling parties to mediate, it is difficult to conceive of circumstances in which it would be appropriate to exercise that power without this resulting in an infringement of Article 6 rights. The Court went on to hold, nevertheless, that 'robust' judicial encouragement to enter into mediation or other forms of ADR was permissible and in particular that a refusal to mediate could in an appropriate case be penalised in costs. More recently, in PGF II SA v OMFS Company 1 Limited [2013] EWCA (Civ) 1288 it was held that even silence in response to an invitation to mediate, without an explicit refusal, could be sufficient to give rise to a costs penalty.

In the decade since Halsey was decided, the line between compulsion and encouragement has been considered on a number of occasions. In the family context, Mostyn J has held that while it may not be possible under the FPR to adjourn for non-court dispute resolution (NCDR) without the agreement of the parties (r. 3.3.1(b)), it is permissible to hold them to a previous agreement to mediate: Mann v Mann [2014] EWHC 537 (Fam), relying on Wah (aka Tang) and Another v Grant Thornton International Ltd and Others [2012] EWHC 3198 (Ch). In the same case the court encouraged the use of what is known in the civil context as an 'Ungley' order (originally devised by Master Ungley for use in clinical negligence cases):

"The parties shall consider whether the case is capable of resolution by ADR. If any party considers that the case is unsuitable for resolution by ADR, that party shall be prepared to justify that decision at the conclusion of the trial, should the judge consider that such means of resolution were appropriate, when he is considering the appropriate costs order to make."

As Mostyn J points out, the use of costs sanctions to penalise a party for failing to mediate could arguably be said to amount to much the same thing as imposing compulsory mediation. The only other sanction available to the court would seem to be that of staying the proceedings for mediation for a period of time (as is regularly done, almost automatically, with small claims in the county court). The difficulty with this route is that in family cases in particular, delaying the proceedings is likely to serve the interests of one party but cause considerable prejudice to the other – or, worse, to the children. 

The Mediation Information and Assessment Meeting (MIAM) and other NCDR provisions in Part 3 of the FPR are the main tools available to the family courts in their attempt to divert litigants away from the courts into mediation. Prior to the introduction of the statutory scheme in April 2014 the expectation that parties – or at least one of them – would attend a MIAM was largely ignored: an MOJ review of court files indicated that the applicant had attended a MIAM in 19% of cases, and definitely not in 41%, while it was not possible to tell from the remaining files whether the applicant had attended or not, because the Form FM1 had not been completed; see Becky Hamlyn and others, MIAMS and mediation in private family law disputes, MOJ quantitative research, 2015. The respondent also attended in about half of cases where a MIAM did take place, and the conversion rate (MIAM to full mediation) was between 60 and 70%.

There has as yet not been an equivalent piece of research carried out in respect of the period since April 2014, although the response to a Freedom of Information Request made by the National Family Mediation charity to the MOJ in April 2016 appears to indicate that MIAM attendance has not increased at all: in just under 112,000 new private law applications issued over the relevant period, a total of 4,359 MIAMs had taken place. Even accepting that a number of cases will be unsuitable for mediation and therefore a MIAM exemption will apply, that is an extraordinarily low figure. If the cases that can and should be mediated are going to be successfully diverted away from the court, a shift to a more rigorous approach at the gatekeeping stage – see r. 3.10(2)/(3) – and at the first hearing will be required. However by the time the parties have actually turned up at court (and, if represented, spent the costs of the hearing) a conscientious judge or bench of magistrates will generally try to do something with them, rather than send them away unseen to attend a MIAM.

Proportionality and a fair share of court resources
The family courts have changed dramatically in the past decade, and the experience of litigants now is radically different from that of their predecessors in the days of widespread public funding. The Family Procedure Rules 2010 imposed a duty of active and robust case management and required the courts to consider proportionality and the allocation of a fair share of court time to each case. This duty has become more urgent in recent years with what appears now to be a consistent year-on-year increase in new applications, both public and private. Gone are the days when every contested case could expect to have a week's court time set aside for a leisurely trial, preceded by a string of 'directions' hearings.

The pressures on the system have led to increasingly robust judicial approaches to issues of case management, and most experienced family judges are now quite happy to make summary determinations of more minor contested issues at a first hearing, on the basis of submissions alone and prior to any evidence having been filed. Provided that they stay on the right side of the line between robust case management and a premature determination of the issues they are likely to be upheld on appeal: see eg Re C (Children) [2012] EWCA Civ 1489; Re Q (Children) [2014] EWCA Civ 918.

Assuming, as the President does (see 15th View from the President's Chambers, 19 September 2016), that the pressures on the system are only going to increase, it must be just a matter of time before a court positively declines to hear an application at all, on the grounds that to afford any time to it would not be a proportionate use of court time and resources, taking into account the backlog of other urgent work waiting to be heard. The sort of issues that spring to mind are those involving the nuances of child arrangements (pick-up at 10am or 12 noon/ dates of holiday arrangements where the quantum of time is not in dispute) or specific issue applications where each party's position is reasonable and there are no really significant welfare implications for the child. I am not aware of a court yet having refused to hear an application of this nature, other than in those protracted cases where the parties have already had more than their fair share of the court's time and attention; but this must be on the horizon if it has not already happened. In cases where the parties are facing either a 'snap' judicial decision in not much more time than it takes to toss a coin, or no judicial decision at all, mediation may well be the more attractive or indeed the only option.

Privilege, confidence and 'without prejudice' communications
Where mediation is taking place, and there are existing or contemplated court proceedings, it is important to be clear about what information disclosed during the mediation can and cannot be shared within the litigation. Most mediation agreements require the parties to sign up to a confidentiality agreement which will protect the information they disclose from being produced to the court – other than financial information, which is normally provided on an open basis, or where the mediator is in receipt of information concerning harm to a child or adult which gives rise to an obligation to make a referral to the appropriate authorities: see Re D (Minors)(Conciliation: Disclosure of Information) [1993] Fam 231.

Issues of privilege, confidentiality and without prejudice communications are complicated and the law on these issues, which is not entirely clear, is outside scope of this article. Within the mediation context there is a substantial but not a complete overlap between the concepts. The without prejudice rule is a rule of law, based primarily on public policy. Obligations of confidence may arise as a result of a private agreement (ordinarily three-way, between the two parties and the mediator); the confidentiality of the mediation may be overridden, and disclosure ordered, but only where this is necessary for the fair disposal of the case: British Steel Corporation v Granada Television Ltd [1981] AC 1096.

In Farm Assist Limited (In liquidation) v DEFRA (No 2) [2009] EWHC 1102 (TTC) a witness summons had been issued against a mediator. Both parties had waived without prejudice privilege and the mediator alone was resisting the summons on the grounds of confidentiality. Ramsey J set out the following helpful summary of the overlapping concepts:

(1) Confidentiality: The proceedings are confidential both as between the parties and as between the parties and the mediator. As a result even if the parties agree that matters can be referred to outside the mediation, the mediator can enforce the confidentiality provision. The court will generally uphold that confidentiality but where it is necessary in the interests of justice for evidence to be given of confidential matters, the Courts will order or permit that evidence to be given or produced.

(2) Without Prejudice Privilege: The proceedings are covered by without prejudice privilege. This is a privilege which exists as between the parties and is not a privilege of the mediator. The parties can waive that privilege.

(3) Other Privileges: If another privilege attaches to documents which are produced by a party and shown to a mediator, that party retains that privilege and it is not waived by disclosure to the mediator or by waiver of the without prejudice privilege.

The FHDRA and other court-based conciliation schemes
Where attempts at conciliation take place within the court building, particularly when the parties are there for a court hearing, there is plenty of scope for misunderstandings and confusion about the status of communications made. The confusion has not been assisted by the transition from the various pre-Child Arrangements Programme conciliation schemes operating in different courts, which were often privileged (eg at the Central Family Court, if agreement was not reached at the first hearing, known as a 'conciliation appointment', the Judge and Cafcass officer had no further involvement with the case) to the CAP hearings (FHDRA and DRA) which are not privileged – even though the DRA equivalent in financial proceedings, the FDR, is. Interestingly, privileged hearings in children cases have recently reappeared in the area of public rather than private law, with a pilot scheme for without prejudice 'settlement conferences' in care cases running in selected courts from June to October 2016. 

Although the standardised CAP approach has been generally adopted, there is plenty of scope within it for at-court conciliation schemes, some involving Cafcass, some not – and some labelled 'mediation', others not. As a general rule, if a Cafcass officer is conducting the process and it forms part of the hearing the expectation will be that the Cafcass officer reports to the judge and nothing said by the parties to him or her is privileged – whatever the process is called. However if a mediator is present at court offering 'mediation' to parties who are there for a hearing, this may indeed be treated as a confidential mediation session. In every case parties would be well advised to establish the ground rules which are in operating, before making concessions they later regret.