Mandatory mediation has always struck me as a strange concept. If two parties are in dispute, how can you force them to agree?
To be fair, that’s not quite what was being proposed last year in a consultation issued by the family procedure rule committee, which decides on the practice and procedure to be followed in the family courts. Instead, the committee was proposing that before applying to a court an applicant would normally need to attend a family mediation information and assessment meeting, even if the other partner was not going to be there.
We needn’t look any more closely at how this might have worked in view of the government’s response last Friday:
Following consultation on mandatory mediation, concerns were raised that the proposed safeguards to protect domestic abuse victims may not go far enough. To avoid forcing a continued relationships between a victim and their abuser, the government will not change the law to mandate mediation for separating couples.
That’s not to say the government is against mediation; far from it. But it won’t be compulsory. As Alex Chalk, the justice secretary, said:
There is no one-size-fits-all approach for separating families, which is why we’re ensuring people have access to early legal advice and mediation to resolve disputes as early as possible.
These reforms will help spare thousands of children the long-term harm of lengthy, combative courtroom conflict.
Chalk’s announcement has been welcomed by mediators. Sarah Manning, a partner at Hall Brown Family Law pointed out that mediation was a voluntary process:
In trying to encourage more families to resolve their differences without conflict, it was equally important to avoid dispute between ministers and mediators as to how that should best be achieved.
Having new rules come into force in April and judges trained as to how to make full use of them will increase the chances of reducing the very negative impacts which court proceedings and delays can cause.
The broader Ministry of Justice announcement was also welcomed by Sir Andrew McFarlane, president of the High Court family division. He said:
If implemented, the range of initiatives published today are likely to be of genuine benefit in assisting many separating parents to resolve disputes over the care of their children promptly and without going to the family court.
The primary responsibility for promoting the welfare of a child is borne by the child’s parents and not by magistrates or judges; the court should be the place of last resort rather than the first port of call.
Transparency
Separately, the family courts are becoming more open from today.
Journalists and legal bloggers will be able to report on some proceedings in the financial remedies court as part of a reporting pilot launched by McFarlane. The pilot will cover the central family court in London as well as courts in Birmingham and Leeds.
We were told that case lists for all financial remedies claims, including cases heard at the Royal Courts of Justice, would name the parties and say that the proceedings involve financial remedies. However, these do not appear on today’s online cause list.
The pilot will not cover financial dispute resolution hearings. These enable parties to reach a settlement with the assistance of the judge and remain a confidential part of the process.
The changes have not been universally welcomed. Claire Gordon, a partner at Farrer & Co, said:
The new transparency rules in financial remedy proceedings are intended to provide consistency. Historically, anonymity was at the discretion of each judge whereas now there are clear guidelines which are to be applied in every case.
There is a risk, however, that some may seek to weaponise the new rules. The mere threat of media attendance and greater access to court documents containing sensitive personal information will, in some cases, be sufficient leverage to deter a party from seeking the proper assistance of the court, particularly where high-profile individuals are concerned.
A greater number of disputes are also likely to be settled through arbitration, where privacy is guaranteed, if this route can be agreed by the couple. Ironically, this will mean that some big-ticket cases will continue to be shielded from public view — although this will also have the side benefit of relieving some of the ongoing backlog in the family courts.
There is useful guidance from the Transparency Project. Sir James Munby, McFarlane’s predecessor as president, has also written extensively on this.
In a separate move, the reporting pilot is being extended to 15 more family courts across England from today, as I reported earlier this month. The 16th — West London — has been delayed until next Monday.
Update 0700: Sanchia Berg’s interview with McFarlane will be broadcast on the Today programme, BBC Radio 4, at 0750. It will then be available through BBC Sounds
Perhaps it is easy to forget the particular family situation allows the children in the marriage to be unwilling observers to events they may not be able to understand or process but still to be participants in the drama. The law takes so long that the children then become inured to the emotional, if not also physical, violence. It took years for my then husband to agree to a divorce: then he agreed because I was entitled to half of the ensuing tax-free payment of more than £5 million, and he decided I would receive not one farthing of that money, even to the extent of lying on documents. The lawyers, Judge and every one all knew (except me) about this money, and assumed I had just abandoned my claim to it. But, a furious law student of his sent me a tiny paragraph in a local tabloid to let me know what he had done. This is just one example of how men can use and abuse the legal system in the marriage arena with disastrous effects on the children who may never recover.
Sharing a robing and lounge area with family practitioners as I used to in a Court building housing both criminal and family Courts I listened to them in rapt horror sharing the stories concerning their current cases, especially when dealing with children issues. I used to tell them how much I admired them for undertaking such traumatic and exhausting work. I would add (a little flippantly,I grant you): “Give me good, clean crime any day.”
With my (non-lawyer) daughters I am currently (as you do) advising and TRYING to guide a family friend through contact proceedings concerning the thirteen year old son of a “failed” marriage. Frankly anyone without “skin in the game” would struggle to identify quite what the (supposedly) significant difference between the adult parties was. And yet, and yet: hours of (on the whole) patient discussion and a serious two hour intervention from the first hearing Court and its seasoned and skilful “duty” CAFCASS representative resulted only in two brief, tense Court hearings and the case then having to be put off with an admonishment to both parents to a “final” (please let it be so!) hearing before a specialist family District Judge and with a preliminary order for ONE extended appointment for contact with the father.
The Court’s approach seemed to teeter on the mandatory to me- but then I have to ask myself what the two (clearly concerned) Magistrates might have done differently. I have yet to come up with an answer. (To be clear, I was there just for moral support, with one daughter as the McKenzie friend).
IS there a better way? Over to the experts!