Transcript Mapping Paths to Family Justice

Mapping Paths to Family JusticeBest Practices & Policy Implications
Mapping Paths to Family Justice Final Conference
Session 2
Commonalities across process
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In all processes, we found –
Conciliatory approach is now dominant in all processes
Lower conflict cases are usually easier to settle
Quality of practitioner(s) is key to settling higher conflict
disputes
Lack of emotional readiness is often a barrier to
settlement; high instances of depression were reported
The Voice of the Child is a focus across the processes but
is in strong competition with entrenched ‘adult rights’
discourses
Any process can be used to avoid settlement
Learning lessons- moving to best practice
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Parties need real choice where possible to effect
‘appropriate dispute resolution’ and this should be
positively (rather than negatively) offered to clients
Support from other professionals during any FDR
process is often needed and should be a ‘joined up’ rather
than a ‘competitive’ process
All Professional Associations have a key role to play in
providing comprehensive training and high standards of
professional conduct
It is important to acknowledge that court is sometimes
appropriate
Best Practices in Offering ADR
Options to Separating Parties
Mapping Paths to Family Justice Final Conference
Enabling Informed and Appropriate Choice
Clients
should receive clear, accurate, neutral information and
advice on available FDRs and their strengths and disadvantages,
tailored to their situation, and with sufficient opportunity to
discuss concerns and reservations.
“They
[mediation service] were very good – they checked sort of every
step of the way that we were happy with it, and what the limitations were,
just to make sure that we had no false expectations, and very much
emphasised that it was to help us sort things out” (Norah, who mediated)
.
Working with Constrained Choice
In
reality many clients are constrained by cost, and by the other
party’s wishes.
“I
didn’t feel I had a choice, it was either mediation or… I felt it was my only
real choice to, kind of, get things sorted, especially to do with my child.
Because I basically got told in terms of solicitor’s time, it was too expensive;
there wasn’t enough legal aid to do it. (Sonia)
The
perception of being forced into an ADR without choice often
contributed to this breaking down:
So
did you feel you had any choice in which form of dispute resolution you used?
“Well, she started the action, I had to respond to it, so I did.” (Victor, who
deliberately dragged out Solicitor Negotiation by being as slow and unhelpful
as possible)
.
Practitioner knowledge of the FDR options
Practitioner
knowledge and experience of what different FDRs
have to offer is a key factor in this context.
Practitioners
who have undergone training in each process are
better placed to explain the full range of options than those who
have not.
More
training in the various FDR options – e.g. the availability
of DVDs of each process – would go some way to filling this gap.
.
Emotional Readiness in hearing what is
offered.
Clients’
emotional state needs to be factored into information
delivery about options.
“I
don’t want to do [solicitor] a disservice. He could have explained it
incredibly well, but at that point in time.. it’s really hard to know what the
hell’s going on.” (Glenys)
“I
didn’t know who to go to, what to do, and then he started talking about
the collaborative thing. At the time I felt like I was being completely
bamboozled because he was saying, ‘This is what we’ve got to do, you’ve
got to do this, you’ve got to do that.’” (Pauline)
Parties
were particularly unclear about whether they had had or
read a Code of Practice, and what this information consisted of.
.
Emotional Readiness and appropriate
options.
Good
practitioners recognise when clients are not emotionally
capable of absorbing information and making effective choices
and slow the pace and/or refer clients for professional assistance
accordingly.
“Did
she speak to you about the relationship and any emotional issues that
were going on as well?”
“Yes, she did. We talked about that. That was when she explained the
processes. That’s why I said I didn’t want to go for mediation at that point
because I just didn’t feel that I could do it, I suppose. I didn’t really feel
strong enough to do it.” (Tracy, who used Collaborative Law)
.
Susceptibility to practitioner influences
While
many practitioner did describe a range of options, many
parties were susceptible to practitioner preference, and followed
their practitioner’s enthusiasm for a particular FDR:
“She
was very pro-mediation. So she kind of described it in favourable
terms. Just that you’d be able to get in a room together and work with a
professional third party who would help you to talk about the issues and
then you can come to an agreement” (Charlotte)
.
Time to research and consider options
Clients
should be given sufficient time to inform
themselves and prepare for the FDR process.
“As
soon as [lawyer] had suggested the collaborative divorce process he
sent me away with literature on the different possibilities and then I did
my own research online of what that meant." (Marcus, Collaborative Law).
.
Effective screening
Effective
screening for client and case suitability is needed in all
processes, combined with appropriate responses to the situation.
As well as screening for risk in domestic abuse and child abuse
cases, practitioners should be alert to other factors which affect
FDR suitability, including mental health issues;
Did
you feel that your lawyer took into account your emotional state during the process?
Yeah. That was the main thing that he did do. He knew I had mental health
problems and he made sure I understood everything crystal clear (Richard)
Also
including power imbalances and the potential strategic use
of Mediation or Collaborative Law by a dominant or controlling
partner;
“I
.
would have hated [Collaborative Law]. I was married to a lawyer, you see.” (Eve)
Summary of Best Practice in giving options
to clients
Constrained
choice: helping clients make choices which
fit their needs pragmatically.
Emotional
readiness: giving time to talk and think
through options, helping them choose an emotionally
suitable process.
Susceptibility
to practitioner influences. Being aware of
their influence here. Offering neutral intake sessions.
Selling Family Dispute
Resolution Positively
Mapping Paths to Family Justice Final Conference
Key Message
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There are sufficient positive reasons for referring
clients to FDR to make negative stereotyping of
court outcomes unnecessary.
Undermining of the court process
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Rather than promoting FDR on its own merits
practitioners undermine the court by emphasising:
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Costs
Delay
Loss of control over outcome
Uncertainty of outcome
Overstating judicial unpredictability
“[T]he court... is not a great system, it's very slow and
the outcomes are pretty unpredictable...
[O]ver financial issues I think that the court does more
or less what is sort of sensible you know... and I think
over kids it does something very different, and I think
particularly with little babies or little ones it is even
more unpredictable because the judges are not really
trained in this stuff and don't really know what they are
doing.”
[Solicitor-client interview 201].
Overstating judicial discretion
"I have certain little visuals, sort of analogies that I use,
painting pictures that I hope help[s] [clients] to
remember things. Twelve different District Judges
in a room with the same set of facts come out
with thirteen different decisions and things like
that, that just help them."
(Jane Davison; mediator, former solicitor).
Overstating judicial discretion
creates uncertainty
"I knew that if I took it to court… I could be faced
with… somebody taking a very different view. It
seemed to me that I had no idea what to expect… I
didn’t really want it to go to court because
a) it would be hugely expensive,
b) because it would be extremely stressful for
everybody concerned and I was completely in the
dark as to what the likely outcome would be."
(Simon: settled financial case in mediation following
solicitor negotiations).
Overstating judicial discretion
creates pressure
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The undermining of court proceedings:
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Puts parties under undue pressure to settle on terms which
may be unfair.
Creates additional stress and anxiety if they do have to go to
court.
Overstating judicial discretion
undermines
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Overstating judicial discretion/uncertainty of court
outcomes:
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Restricts practitioners’ ability to bring the shadow of the
law to bear in FDR
Undermines respect for the law generally
Provides ammunition to the view of family law as arbitrary
and biased
Fails to recognise that court proceedings are the first and most
appropriate resort in certain categories of cases
The positives of court proceedings
"If it doesn’t seem that they are very close and it seems
that there is a lot to play for for both sides, then I will
issue straight away and it’s like right, court timetable’s
engaged, we can try and have a round table meeting
prior to the first appointment… So it’s in [the other
party's] interest to provide us with as much disclosure
as [they] can… and then we can try and strike a deal...
So my tendency will be to try to issue early so
that there is an end in sight and there are
milestones along the way.“
(Francesca Lamont, solicitor).
Mutual respect
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Very often FDR is the best option but sometimes
court proceedings are necessary.
An attitude of mutual respect between FDR and
family courts would be better practice
Positives of mediation
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Mediation offers:
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The potential for speedy, cost effective solutions
The retention of decision-making by the parties
Longer-term support for the co-parenting relationship
Scope for creative solutions:
“What we loved about mediation, you know, I mean
they came up with this solution that neither of us had
seen or considered.” (Jasper)
Positives of solicitor negotiation
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Solicitor negotiation offers:
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Legal advice and expertise from an ally
A 'buffer' particularly to vulnerable parties through armslength negotiation:
“My solicitor was good, because she would sit me
down and say, ‘Right, this is what happens next. This is
what your options are.’ [She] did empower me, really…
I felt it was a bit like a boxing ring and I was in- I was
really flat out when I first saw her. [By the end] I’d got
up again.” (Stella)
Emphasise the positives
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Key Message:
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There are enough positive reasons for parties to engage in
FDR
These should be the focus of practitioners’ representations
and marketing campaigns, rather than scare stories about
going to court.
Mapping Paths to Family JusticeVoice of the Child
Mapping Paths to Family Justice Final Conference
Voice of the Child
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Among our practitioner sample, focusing on the child in children or all
issues cases was confirmed as best practice in all FDR processes.
For mediation, it was seen as a fundamental tenet linked with improving
communication between the parties as parents for the sake of the children.
Party experience overall confirmed that this was attempted by most
practitioners to put children at the centre of negotiations.:
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“Did she get you both focused on your child’s wellbeing?
Yeah, she did. It were obvious that her main goal was to- I mean, she’d
never met my daughter, but her main goal were to get something sorted
between pair of us for her. “(Kathy, Mediation)
And did you feel that the lawyer focused on the welfare of your children and was
looking out for them?
Yeah. Yeah, that’s what the main concern was. That’s where his main
argument was and everything. (Richard, Solicitor Negotiation)
The increasing number of ‘hybrid’ practitioners, qualified in more than one
process, has arguably helped to ensure that child focus has become part of
lawyer-led processes.
Good practice around Voice of the Child
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We found that good practice, where mediators were skilled at
reframing questions around children, was appreciated by
parties –
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“One of my husband’s objectives was to spend as much time with
the children as possible and so the mediator said, ‘Well, why don’t we
phrase it as to be able to build meaningful relationships with the
children?’” (Tracy, Mediation)
Examples of this were identified in recorded sessions too:
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“The reality is, as you have said, you have got kids and they are at the
heart of the solution.” (Solicitor-Client Interview 203)
“Because you have both accepted that you do want [child] to have a
relationship with his dad, so how can we reintroduce contact in a
way that would be sensitive for [child]?” (Mediation 209(1))
Voice of the Child
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In some cases, after prolonged dispute, consulting the children
had helped to resolve the issue.
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Sheila’s ex-husband proposed in Collaborative Law an arrangement
whereby the children would spend more time with him, which Sheila
resisted because she did not think it would be in the children’s best
interests at that particular time. This was one of the reasons the
collaborative process broke down, after which:
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“I actually spoke to the kids... and I said, ‘Look, part of the reason things
were difficult was because we were about to make these new
arrangements. What do you think?’ And they said, ‘Fine, we’ll try it’.”
(Sheila)
It would appear that consulting children may be an effective
mechanism for dealing with some difficult cases, particularly
where parties have fixed and incompatible conceptions of child
welfare.
Voice of the Child and child-inclusive
Mediation
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Only Mediation offers a ‘child-inclusive’ (as opposed to
‘child-focused’) process.
Although a high number of the mediators in our
practitioner sample had trained to undertake childinclusive mediation, we found this to be very rare in
practice –
A typical practitioner response was,
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“It is done very occasionally in this practice, say one or twice a
year. [T]he only difficulty with it is that, generally speaking, it is
the more difficult cases that you would involve direct child
consultation. “ (Gordon Russell)
Voice of the Child and child-inclusive
Mediation
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Some practitioners felt it could  help parents view matters from their children's perspective
 be useful for older children
Practitioner reasons given as to why it is so rare include,
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Neither or only one parent would consent
The child was not willing to participate
It places pressure on the child
Cost
Some practitioners indicated a lack of confidence around
undertaking the child-inclusive process:
 “One of the mediators who work for me has done the course
and erm we have done it once I think but neither she nor I are
actually particularly keen on it as a principle and so I don't see
children so we don't. We can offer it in very unusual
circumstances but it is very rare.” (Melanie Illingworth)
Voice of the Child and child-inclusive
Mediation
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Within our party sample, a few people had considered and
rejected child-inclusive mediation, with concerns about the
possible emotional impact on the children:
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“I think [mediator] said, ‘Perhaps I could invite [daughter] along to
get her involved.’ But she didn’t want to go. I was trying to make it
the least stressful for her as possible. So yeah, that wasn’t really
good”. (Lynn)
One father had experienced child inclusive mediation, and still
had reservations, although it had enabled them to agree on
one issue around choice of secondary school:
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“I think mediation has to be child focused. Rather than child inclusive.
... I think there’s better ways of focusing on the child than actually
bringing them to mediation. I think it puts them in a very difficult
position.” (Ernest)
Child-Inclusive Mediation – Australian
research
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However, despite these misgivings by parents and practitioners
around including children in the mediation process in our data,
a recent Australian study comparing child focused and child
inclusive mediation came to positive conclusions:
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‘The best predictor of resolution overall was not the parents’
mediation group, but their levels of acrimony, conflict, and
cooperation. Nonetheless, parents perceived that there were benefits
from the involvement of children in the process other than achieving
better outcomes in terms of dispute resolution, and the experience
of having the children seen by a child consultant was generally
positive.’ (Bell et al, 2013)
However, the same study found that child-inclusive mediation
‘could also lead to disappointment when raised expectations
were not fulfilled.’
Child- Inclusive Mediation – Australian
research
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Another earlier Australian study reported by Moloney
and McIntosh (2008) pointed out,
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‘Child- inclusive practice, more formally fulfils the aspirations of
the United Nations Convention on the Rights of the Child (and
statements from similar bodies) that children should be
consulted when decisions about their welfare are being made.’
They support child-inclusive practice (as defined in
Moloney & McIntosh) which allows for consultation
without placing the burden of decision making on the
child.
The Family Justice Young People’s Board in England and
Wales feel strongly children’s voices should be heard,
should Mediation be an exception? …
FJYPB Charter
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Whilst focusing on court proceedings, their charter recommends 1. Children and young people should be at the centre of all proceedings.
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The child or young person should feel that their needs, wishes and feelings have
been considered in the court process.
Each decision should be assessed on its impact on the child…
3. Every child should be respected and treated as an individual…
5. Children and young people should be given the opportunity to meet and
communicate with the professionals involved with their case including
Cafcass workers, social workers, judiciary and legal representatives...
7. Every child and young person should have the opportunity of giving
feedback through email, text, telephone or written form.
8. Children and young people should be involved in all developments in
family justice.
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Inspection by young people of the family justice services.
Involvement in training of all professionals in family justice.
Support & Collaboration
in FDR
Providing ‘Joined Up’ Services
Tailoring the process for the client
“Family lawyers with an interest in ADR also
need to be creative; it’s a creative process.“
(Matthew King)
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Part collaborative / part mediation, with counselling
and/or financial input
 Bespoke solutions fitting process to party
 Engage specialist support as appropriate
Holistic approaches to clients needs
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Addressing the issues holistically
 Multi-disciplinary approach to address clients
needs fully
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More cost-effective for the client:
 “I don't need to do that. I can bring in other people
who can do it better.” (David Leighton).
Tailoring services for all clients?
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For the benefit of private clients to date
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What can be done with legally aided mediation?
 Free referrals to DV support services / counsellors
 Claiming the costs of pension valuations as
disbursements.
Well-established linkages
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Financial advice in mediation/collaborative law
 IFAs, pension advisers, pension valuation
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Legal advice during/after mediation
 Need for advice to assist in the process
 Advising on agreement/securing consent orders in
financial cases
 Referral prior to commencing mediation?
Connections less often mentioned
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Counselling/therapeutic
DV support
Parenting education
Connections referred to often stemmed from a
mediator’s professional experience prior to
mediation training.
Solicitors who do not practice mediation or
collaborative law are least likely to have well
established networks.
Co-operative relationships
Between mediators, lawyers, financial advisers,
child consultants...
“I am building a multi-disciplinary model which involves
accountant neutrals coming in getting engaged in
agreements, financial planner neutrals, valuer neutrals and
so on…”
(Peter Young)
Key Message:
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A bespoke service, tailored to individual cases rather
than an off-the-peg product best meets the needs of
clients.
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Such a service requires the establishment of joinedup, cooperative relationships between professionals.
Policy Implications
Mapping Paths to Family Justice Final Conference
Policy Goals
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To promote conciliatory approaches to the resolution of
post-separation family disputes
To enable and support an efficient and cost-effective
system of out-of-court dispute resolution, responsive to
the range of clients’ needs and circumstances
To minimise public expenditure on family law disputes
To promote and maximise the well-being of children
affected by parental separation
To enable swift recourse to court proceedings where
these are unavoidable
No-Fault Divorce
JP: So what we want is we want to start the divorce ... as soon as possible so
that we can get to the stage where the court can make a financial order as
soon as possible. ...
RB: The disadvantage of doing that is that you don't have the ability to just
have a divorce on the basis of separation which is a sort of what's called a
no fault way of separating. Somebody needs to do the divorce and they
need to be blaming the other. However artificial that is, that is the only of
doing it.
JP: So somebody has to decide who is going to be the one who is going to
take...
RB: Who is going to do the blaming.
JP: Who is going to do the blaming and who is going to take the blame.
...
RB: ... we are in a situation where somebody has got to do it to be able to get
that next stage and ... we need to do it now, because you know, we have got
to get those documents drafted and in front of the court to get the
finances for the next stage.
JP: So there are two options, there is a divorce on unreasonable behaviour or
there is divorce on adultery.
...
JP: ... So adultery, that has to be admitted but you don't really need to say very much,
whereas with behaviour you do have to have usually, and I would usually say about
half a dozen mild allegations, so mild things that you would have to say about the
other. But the one who is receiving the divorce petition can mark on the court
form that you don't accept any of the allegations, so you can actually deny it all and
the behaviour divorce can go through. But on the adultery divorce you have got to
admit it as otherwise that won't go through. It’s a question of what you feel more
comfortable with.
GQ: Well unreasonable behaviour just sounds pretty vile around sort of children stuff
to me.
JP: It doesn’t have to, it really doesn’t have to.
GQ: That would be my only concern. I mean I know it’s all just make-believe but...
JP: We could talk about what should be in it.
GQ: No, I wouldn’t want it. Like I say, I wouldn’t want something to happen and it
could come back at any point, so to sort of say that he was unreasonable around
the children or something.
RB: But I mean if you want to do it, it’s cost effective for you and hassle effective for
you and we can sit around now and draft it up if that's easier.
GQ: Yeah, it might help things as otherwise...
RB: But one of the problems is inevitably it causes tension because neither of you want
to be saying this. It just has to happen to be able to get the divorce.
SQ: Is it just easier to do it on adultery, because then you haven’t got to come up with
reasons?
GQ: I think so, personally. I would, yeah.
JP: So who is going to start the divorce, who is going to be the person who applies?
GQ: I will do it.
...
RB: Ok, Gary will be starting, ok.
JP: And so that's going to be on the basis of your adultery Sandra, which you will have
to admit.
SQ: Ok.
JP: Just thinking through what the court will need for that. The court may need a date.
RB: So various dates, various locations.
JP: We can do it; we will do it that way.
...
RB: Well that's much easier because if we are doing it on that basis we don't need to
talk about it.
(Collaborative Law 204(1))
Appropriate Dispute Resolution
Facilitate and support all forms of FDR
 Recognise different options may be more or less suitable
for different parties
– Mediation – Solicitor Negotiations – Collaborative Law
 Encourage and support Resolution and the Law Society
to promote non-adversarial practice
 Support and encourage collaborative work between
lawyers and mediators – referrals in both directions

MIAMS  DRIAMS
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Dispute Resolution Information and Assessment Meetings
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Explain the full range of FDR options
Offer genuine choice, guided by suitability criteria
Free for everyone
Delivered independently by a range of accredited providers
Delivered individually by default
Incorporating initial legal advice
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Free for legally aided clients
Encouragement and active referrals for privately funded clients
Regulation of Mediation
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Recommendations of McEldowney Report
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All FDR providers
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Subject to regulatory standards
Subject to CPD requirements
Able to become accredited specialists
The Role of Family Courts
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A last resort
A first resort and most appropriate forum
A bargaining chip to aid negotiations
A timetable and process to progress negotiations
Helen’s ex-husband behaved in a way she thought was not in
their daughter's best interests so she stopped contact. It was
only reinstated after a year when her ex-husband issued
proceedings. She knew the court would order contact so she
wrote to his solicitor to make an offer: "I was kind of pushed
into it. I waited as long as I could and then I was pushed into it.
But I instigated it, ‘cos I knew I had to… I didn’t want a judge
to tell me I had to do it.”
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A more balanced policy approach to court proceedings.
Promoting Mediation
Family mediation
Sorting out family disputes without going through court
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Bad lawyers and courts:
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“If you are separating or divorcing, family mediation helps you
sort out disputes – without involving big legal fees or going
through a long drawn-out court battle.”
“Family mediation ... is quicker, cheaper and provides a
better way to sort out disagreements than long drawn-out
court battles – helping you to get on with the rest of your
life as quickly as possible.”
“Even if you can’t claim legal aid, you may still save money by
trying mediation first, rather than going straight to a
lawyer.”
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But lawyers and courts can also be OK?
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“Some people going through mediation find it helpful to have
legal support to advise them. Legal aid may be available to help
pay for this.”
“Alternatively, if you have evidence of domestic violence or
child abuse you may not need to go to a MIAM and may be
able to get legal aid to pay for a solicitor to help you bring
your case to court.”
Mixed messages not helpful
Enough positive reasons to sell mediation
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don’t need to rely on negative stereotypes
Closing the ‘LASPO Gaps’ # 1
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Restricted availability (and use) of Help with Family
Mediation
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Civil Legal Aid (Merits Criteria) Regulations 2013
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Reg 38: An individual may qualify for help with family mediation
only if... (a) the individual is participating, or has participated in,
family mediation (other than attending [a MIAM]).
Timing of legal advice – before commencing mediation
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puts clients on a better footing to negotiate
less risk of agreements unravelling
Closing the ‘LASPO Gaps’ #2
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Not suitable for mediation BUT not eligible for legal aid
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Mediate regardless
‘Lump it’
Self-represent in court
} each
} carries
} risks
Develop a (hybrid) mediation model specifically tailored
to higher risk cases – a viable alternative
Public funding for alternative FDRs where DRIAM
provider certifies mediation unsuitable
Public funding for court where DRIAM provider certifies
unsuitable for FDR
Thank you