The New FPR and PD 3A:
The Pre-Application ADR Protocol
Kenneth Clarke - Family Lawyer and Mediator
In his essay ‘The Soul of Man under Socialism’, Oscar Wilde pointed out that ‘systems that fail are those that rely on the permanency of human nature and not its growth or development’. A similar observation might be made of the furore which greeted the seismic changes proposed in the Ministry of Justice consultation paper Proposals for the Reform of Legal Aid in England and Wales. That some of the proposed reforms are now being foisted upon lawyers up and down the country in the form of the new Practice Direction 3A: Pre-Application Protocol for Mediation Information and Assessment will only make more strident those voices who cry ‘heresy, erosion of human rights, denial of access to justice’ and many other colourful and forceful objections. Many of these objections contain more than a degree of merit but arejust as many beingspawned in the cause of self-preservation? After all, without doubt, family lawyers in particular are facing the erosion, if not the complete extinction, of their position as the hierarchy and front line of the family dispute resolution process.
Change is Inevitable: Resistance is Futile
It has been a well concealed fact for many years that the way family cases are conducted in this country and the way justice is administered has produced a flawed system that has, in many instances, served lawyers better than it has served the people they are representing. Radical overhaul has long been overdue. Spiralling costs and ineffective outcomes bear testimony to the fact that the family justice system has been crying out for a new model, a more effective system that provides, cheaper, speedier, lasting and more effective solutions for adults who separate and their children. We may rail against changes to the way family cases are funded on the grounds that people are being denied access to justice and/or that it puts the most vulnerable at risk but, aside from the fact that by themselves such statements are misleading not to say incorrect, the truth is that the old system has been creaking and limping along for years. The legal landscape is littered with unmet expectations on the part of clients and lawyers alike. The collision between expectations and reality has been apparent for decades. However, denial is a powerful force.
Granted, political expediency and the need to tackle the biggest recession
in living memory may have exacerbated the change but can anyone have been naïve
enough to suppose that the legal aid budget was immune to the savage cuts being
imposed on other public sectors? In fact, the government has moved seamlessly
from a policy of deficit reduction to preventative spending measures. Broadly
speaking this means that investing prudently at an early stage to avoid spending
more later will save significant sums for the tightly strung public purse.
And, as statistics from the many court mediation pilot schemes have revealed,
mediation
is one area of huge potential not only in terms of saving costs but also in
the positive benefits the participants gain from the process. The costs of
conflict
are high. It leads to wasted money, poorer outcomes and general dissatisfaction
with the system that produced the outcome. While conflict is present in the
mediation process, unlike the adversarial court system where conflict is often
exacerbated,
in mediation the conflict is managed, distilled and channelled positively.
Unlike the courts, mediation is a creative medium that is more likely to allow
the relationship
of the parties to continue beyond the process, which is vital where they have
children.
The benefits of mediation generally to the economy are enormous. The Council
for Effective Dispute Resolution (CEDR) estimated that mediation saves the
UK £1.4
billion annually. The cost of providing mediation services is currently estimated
at £15 million In the current climate, difficult decisions have to be
made. Inevitably conflicts will arise in allocating resources and addressing
competing
interests. The new Pre-Application Protocol perhaps represents the first toe
in the water of a cultural sea change that will see a gradual redesigning of
the legal landscape and our whole approach to the way we seek to resolve family
matters.
Change for the Better or Worse?
I stopped being a court lawyer 5 years ago because, after 30 years it struck
me time and time again that most of my time was being spent managing people
caught in a corrosive mix of destructive emotions which in turn created
unrealistic expectations, a win-at-all costs attitude and demonised their
former partner
as some kind of monstrous ogre. Little of my time was spent arguing legal
principle. Worse, children’s needs were of secondary consideration to the result in
court and in all too many ancillary relief cases, modest assets were being frittered
away in the cauldron of bitter legal argument. I am sure many of my clients left
the court reeling from the adversarial process screaming ‘Stop the world
I want to get off’.
I believed then, as I believe now that, with obvious exceptions, most cases
are not only suitable for mediation assessment but also suitable to attempt
mediation.
That is a powerful statement and I can see some of my old colleagues reaching
for the critical pen; but that is because the real ingredients which go
into successful mediation are not explained by those supposedly in the
vanguard
of the mediation movement. Yes mediation is a voluntary process, yes it
is confidential,
yes the mediator is impartial and yes the parties stay in control and make
the decisions. But a good lawyer mediator is a far more complex animal
than those
basic principles suggest. Mediation is far more than the sum of those basic
parts. It has a rich and complex DNA which not only helps people construct
fair settlements
but can change their attitude to the way they approach the difficult task
of negotiating, often at a time when every fibre of their being may be
shouting ‘fight!’ I
could write about the seven layers of conflict or the four types of conflict
stories or the principle of adjacent possibilities – all part of
the multifarious layers which underpin transformative and solution-focussed
mediation.
Suffice
it to say that investing in mediation is a good example of preventative
spending because it helps to reduce both the financial and the human costs
and it
improves outcomes.
As a lighthouse shining on this cultural sea change, mediation can help to
create a more effective model of collaborative problem solving. This will have
wider economic benefits by improving the quality of life of both adults and children.
Furthermore, a country which builds a reputation as a place where disputes
are minimised and resolved quickly, creatively and cheaply will be a more attractive
place to work and invest in, and in turn, create a more caring society.
But these Changes are Denying Access to Justice and Putting the Vulnerable
at Risk
As the song goes, ‘It Ain’t Necessarily So’. To begin
with we must distinguish between mandatory assessment for mediation and
mandatory
mediation. What people are being asked to consider before they rush off
to court is whether mediation might provide a better route to resolving
their
issues.
If not, or mediation breaks down, they can pursue the legal route. Mediation
remains a voluntary process. The purpose of the changes, apart from saving
money, is to educate and inform rather than coerce. As the Legal Services
Commission report Research and evaluation of in-court mediation trial (August
2010) revealed,
43% of parties to court proceedings had either not heard of mediation or
at best
had received scant information about it, even if they were represented
by solicitors. Sadly this is not a problem exclusive to the UK. In the
US, Joyce
Hauser in
her research paper An Analysis and Feasibility Study of Divorce Mediation
and a Program
for its Marketing found the following four areas of concern:
(a) There was a lack of awareness about divorce mediation among men and women. The majority of married, separated or divorced couples in the USA would not know where to find a mediator if they wanted one. Education is the key.How will people access information about mediation under the new protocol? It is somewhat ironic that at a time when mediation is being pushed into the limelight, the Family Mediation Helpline is being discontinued. The Family Justice Council’s Court Guide to Family Applications states on the final page: ‘Your solicitor will be able to recommend a mediator to you. Alternatively, you can find a local mediator by contacting two websites or telephoning a mediation helpline’. Presumably this is the Community Legal Advice helpline in the wake of the demise of the Family Mediation Helpline. The courts, CABx, social services and any public body involved with family issues should also be advertising mediation, providing lists of mediators in their locality plus supporting information (leaflets, etc).
(b) Most people were confused by the term ‘mediation’.This is a comment I hear routinely when people are sent to me for assessment. People do not understand the mediation process nor who mediators are and what they do. Most did not know that lawyer mediators existed.
(c) The belief that mediation will not work. Couples are sceptical about mediation because mediators have no legal training, the mediation process is inadequate to deal with complex issues or the attitude of the other party would not be conducive to the mediation process.The growth of mediation is dependant on a well-informed public who have access to all the facts about the mediation process.
(d) Lawyers, judges, child care professionals and the like believe that they can do the job just as well. Indeed, lawyers believe they can do it better.
Solicitors and barristers representing individuals’ interests, or those charged with reporting to the court, often argue that they mediate with the parties to obtain a solution. That is not mediation. It is negotiation in what is often a highly emotionally charged and time restricted environment. There is no impartiality and little time to work on underlying problems which may be causing both dysfunctional communication and distorting the clients’ ability to negotiate fairly and rationally. In children cases, an ‘on the day’ consent order all too often fails to result in better parental co-operation as the solution soon evaporates when old wounds and unresolved grievances re-surface. Even if the parties’ solicitors can achieve a settlement, the costs incurred on both sides are still high compared to the costs of a mediated settlement.
The message of the real and long-term benefits of mediation has failed
to reach the majority of people going through or contemplating separation.
The new protocol
should help to redress that problem. However, by far the biggest objection
to the new pre-application protocol is that it is denying people access
to justice
and putting the most vulnerable, particularly victims of domestic violence,
at risk. Persuasive and irrefutable arguments one might think.
Compulsory Assessment is not Compulsory Mediation
Safeguards and exceptions are clearly set out in Annex C of Practice Direction
3A: Pre-Application Protocol for Mediation Information and Assessment (to
download go to http://www.familylaw.co.uk/articles/FPRPD3A-14022011) which
came into
effect on 6 April 2011:
‘ A person considering making an application to the court in relevant family
proceedings is not expected to attend a Mediation Information and Assessment
Meeting before
doing so if any of the following circumstances applies:
- The mediator is satisfied that mediation is not suitable because another party to the dispute is unwilling to attend a Mediation Information and Assessment Meeting and consider mediation.
- The mediator determines that the case is not suitable for a Mediation Information and Assessment Meeting.
- A mediator has made a determination within the previous four months that the case is not suitable for a Mediation Assessment Meeting or for mediation.
- Any party has, to the applicant’s knowledge, made an allegation of domestic violence against another party and this has resulted in a police investigation or the issue of civil proceedings for the protection of any party within the last twelve months.’
As far as domestic violence and abuse is concerned, mediators undertake stringent enquiries at the assessment stage. Lawyer mediators in particular will have had previous experience representing both the victims and perpetrators of domestic violence and also abuse of children. Those cases which might pose a risk to a party will automatically be disqualified from mediation. However, domestic violence has many layers,and some cases present a lower level of abuse than others. Where appropriate these cases can be successfully managed by shuttle mediation with the parties mediating in separate rooms. Separate arrival and departure times can also be arranged.
The Future is Upon Us: The Time for Disagreement is Past
As mediation has emerged as a tool in the dispute resolution process, it is unfortunate that a ‘them and us’ mentality has taken hold in some quarters. This became more noticeable as each party fought their corner in response to the proposed reforms. When self-interest is the elephant in the room, it may be difficult to accept that mediation is a positive step in the dispute resolution process. For many lawyers, the new protocol will now signal mediation as the first step in the process. But is that necessarily a bad thing? Should an adversarial legal system have the monopoly over people’s misery and the choices they have to resolve their issues? Surely that is neither healthy nor good for society.
Perhaps a wider unspoken concern is that the new changes, radical as they may seem, are in fact a step towards compulsory mediation. Would that be a bad thing? Would that be a breach of Art 6(1) of the European Convention on Human Rights and Fundamental Freedoms 1950? The European Court of Justice does not think so. In Rosalba Alassini v Telecom Italia SpA (C-317/08, 18 March 2010) the Court concluded: ‘It is not an infringement of the right to effective judicial protection for the law to require complaints to be dealt with by way of out-of-court dispute resolution before judicial proceedings can be brought. The provisions constitute a minor infringement of the right to enforcement through the courts, which is outweighed by the opportunity to end the dispute quickly and inexpensively’. In the UK, there is understandable nervousness about compulsory mediation. However, Lord Justice Lightman, commenting on Halsey v Milton Keynes NHS Trust [2004] EWCA Civ 576, stated that ‘an order for mediation does not interfere with the right to a fair trial: at most it imposes a short delay’. Furthermore, although Lord Justice Jackson’s Civil Costs Review (14 January 2010) was not in favour of compulsory mediation, it nonetheless recognised that, where appropriate, the UK courts should encourage mediation. Although the debate continues in England, across the channel it seems that opinion is turning in favour of compulsory mediation, which does not deprive parties of their right to access to the court. Rather it is saying you can have access to the court but while that procedure is running, you must also attempt to mediate. A total cultural sea change will, it seems, take longer to reach the shores of this green and pleasant land.
Conclusion
Competing dissonant voices among the professions must find a way to unite and create a new charter which acknowledges that mutual co-operation among interested bodies and organisations is mutually beneficial, desirable and necessary for promoting and facilitating the use of mediation and other appropriate dispute resolution methods to settle family disputes. Such a charter would formulate a set of principles and objectives that incorporate the principle of sharing resources, best practice and knowledge in relation to the management and resolution of disputes.
As in mediation, when participants to a dispute see an event as a threat, wishful thinking, avoidance and even hostility are employed in the name of denial. But when the event is seen as a challenge they are more likely to find solutions. Change of the magnitude being introduced in the field of family law has to be viewed as an opportunity. The tide is turning. Resistance will only postpone the inevitable repairs to the family justice system which are long overdue. Family lawyers and practitioners are facing the need for fundamental innovation in how they shape their futures. In the early dawn of this new legal landscape, law firms in particular will be divided into the early adopters of change and those who resist it. Finding mutually acceptable and beneficial solutions is a challenge for mediators, lawyers and professional bodies alike. And of course, finding mutually acceptable and beneficial solutions is what I would say mediators do best.