Mediation – what makes you think you have a choice? By Andrzej Bojarski

Divorce|Family Law|March 12th 2014

In this special post, barrister and mediator Andrzej Bojarski examines the contrasting roles of mediation in civil and family courts.

Mediation is a good way of helping separating parties reach an agreement over their children or their finances. Most experienced lawyers and judges would struggle to argue against that proposition for the majority of family cases.

Most mediators will stress that the strength of the mediation process is that it is voluntary: both parties agree to attempt to resolve their dispute by mediation. Either party may choose to end the mediation without giving a reason. By reason of its voluntary nature, either party may refuse to mediate from the outset.

At the moment, the civil courts are moving more quickly on mediation and appear intent on pressurising litigants to use it. The family courts appear to be moving more slowly and have not yet gone nearly as far as the civil courts in forcing parties to use alternative dispute resolution.  Will that change?  Should it change?

The civil courts: the unmarried couple’s property dispute

To an extent, the voluntary nature of mediation has already been significantly eroded for an unmarried couple trying to resolve disputes over property once their relationship ends as they usually have to use the civil courts to resolve property disputes (though some financial orders for the benefit of the children might be available under Schedule 1 to the Children Act 1989).  The Civil Procedure Rules (CPR) in the civil courts are different from the Family Procedure Rules (FPR) in the family courts.

In the civil courts the court may, even if the parties do not agree, ‘stay’ the proceedings for a time to allow the parties to settle the case, usually by engaging in a form of ADR such as mediation.  The Court of Appeal decided in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 that the court cannot directly order the parties to participate in ADR as this would breach their right to access to a court under Article 6 of the European Convention on Human Rights. Although the court cannot  specifically force the parties to mediate, it can place them in a position where they have little option but to do so.  The court can make it clear that a failure to participate in ADR may mean that a costs order is made against the recalcitrant party, even if that party ultimately succeeds.  Recently, a party who simply remained silent in the face of an offer by the other party to engage in mediation was penalised very heavily in costs for failing to explain why it was not reasonable to engage in mediation (PGF II SA v OMFS [2013] EWCA Civ 1288).

Of course, if parties are not legally represented in proceedings and not incurring legal costs the threat of costs orders will no real force against them.  This is clearly a concern for the courts because those cases where both parties are unrepresented are often the most difficult and time-consuming to deal with.  This inability of the court effectively to coerce such parties to mediate has caused Sir Alan (part of the court which decided Halsey in 2004) to suggest recently that the rule against ordering parties to mediate in Halsey might have been an error and should be reconsidered (Wright v Michael Wright Supplies Limited [2013] EWCA Civ 234). It would not be a great surprise if we see this issue re-examined by the Supreme Court in the near future and, even if not, we may see a change in the CPR to permit greater powers of coercion, especially in those cases where the threat of a costs order is not very

Certainly, the civil courts have become proactive in encouraging the parties to engage in mediation or ADR.  The Court of Appeal has actively encouraged the parties to engage with its own ADR scheme for a number of years, with significant success.  The same is true in the lower courts. I recently appeared before a Master of the Chancery Division in a substantial property dispute between an unmarried couple who had separated.  Roughly half of the time at the case management hearing was spent with the Master giving directions which effectively coerced the parties to engage with ADR to avoid punitive costs orders being made against them.

However, the family courts do not appear to be pushing parties towards ADR with the same speed and vigour.

The Family Courts: Matrimonial Proceedings and Disputes Over Children

In most, but not all, proceedings between divorcing parties over financial issues the courts have, for well over a decade, required the parties to engage in a form of judge-lead ADR.  Most cases are listed for a financial dispute resolution hearing (FDRH) before a judge who will not take any further part in the proceedings if a settlement is not reached at the FDRH.  Although sometimes referred to as ‘judge-lead mediation’ this is not, strictly speaking, mediation.  It is, in most cases, a meeting at which the judge provides a ‘neutral evaluation’ of the strength of the parties’ respective cases (something which most mediators would regard as outside their role) and the parties are encouraged to negotiate, usually outside the courtroom. In cases concerning arrangements over children, a process to engage the parties in mediation and/or discussion with a CAFCASS officer is encouraged through the first hearing dispute resolution appointment (FHDRA).  The effectiveness of this process appears to vary widely between courts.

Despite this form of ADR being firmly embedded in the practice of the family courts, there seems to have been less enthusiasm from family judges for coercing the parties to engage in ADR than we have seen from the civil court judges.  Any party issuing proceedings for a financial remedy or in regard to arrangements for children must attend a Mediation Information and Assessment Meeting (‘MIAM’).  Although some parties do so, many do not, and anecdotal experience suggests that the courts do little to enforce this requirement.  If and when passed by Parliament, the Children and Families Bill will put MIAMs on a statutory footing and will authorise the court to refuse to issue or otherwise deal with an application until the applicant has attended a MIAM.  This will certainly make the courts more rigorous but it is far from making mediation or ADR compulsory.  Under these provisions only the applicant is required to attend the MIAM and there is no obligation on the applicant to actually proceed to mediation.  There is no obligation on the respondent to engage with mediation at all.  This is not, as widely but inaccurately reported in the press, compulsory mediation: it is compulsory education about mediation for only one of the parties.

As Mr Justice Mostyn recently reminded us in Mann v Mann [2014] EWHC 537 (Fam), the FPR have an entire section, Part 3, devoted to ADR.  However, the FPR are drafted differently from the CPR.  Unlike the power of the civil courts to stay proceedings to encourage the parties to engage in ADR, the FPR only permit an adjournment to enable the parties to obtain information and advice about ADR.  If, after their dutiful and in many cases cursory, efforts to obtain such information and advice, they decline to mediate, the court may only adjourn the proceedings for ADR to take place ‘where the parties agree’.  In Mann v Mann the parties were engaged in long-running proceedings surrounding enforcement of the terms of a settlement they reached by agreement in financial remedy proceedings during their divorce.  At an earlier stage they had entered into an agreement to try their best to compromise on the issues between them by mediation.  Despite the wife’s opposition, Mr Justice Mostyn adjourned the matter for eight weeks to allow the parties to engage in mediation.  He was only able to do this due to their earlier agreement to mediate.  He also made an ‘Ungley order’, based on the types of order made in civil proceedings, making it very clear that an unreasonable failure to engage with ADR may have cost penalties at the end of the case.

Paradoxically, of course, in any family case where the parties do not agree to engage in ADR the court’s powers to force them to do so remain weaker than those of the civil courts.  It is difficult to see this anomaly remaining.  Expect a change to the FPR to bring them into line with the CPR in the near future.

Is compulsory mediation a good thing?

Greater compulsion to engage in ADR has a strong tail wind.  Many mediators do not agree with it.  Mediation must be voluntary if it is to work properly, they say.  I have some sympathy with that view, but I do not wholly agree.  Yes, parties should be free to leave a mediation if they wish to once it has begun.  It is for the mediator to use his skill to keep the process effective and the parties engaged with it.  But what is the harm in forcing the parties to commence the mediation process in most cases?  Experience suggests that once the parties meet with an experienced and skilled mediator (with or without their lawyers present, depending on the type of mediation they have adopted) they are likely to be drawn into engaging with the mediation process quite quickly.  Initial reluctance to mediate quickly disappears once the parties become involved with the process.  The more time and effort they invest in the process the more engaged they become.  It is a virtuous circle.  But sometimes only a degree of coercion can place the parties within that circle in the first place.

Hard statistics on the success of mediation are not easy to find.  Justice Minister Jonathan Djanogly spoke of a 68 per cent success rate in legally aided family mediations in 2012.  The Centre for Effective Dispute Resolution cites a 90 per cent settlement rate (70 per cent on the mediation day, 20 per cent shortly thereafter) in its annual report.  Those figures suggest that requiring the parties to attempt mediation, rather than just find out about it, will be worth while in the majority of cases.

Andrzej Bojarski of 36 Bedford Row chambers specialises in the financial aspects of family relationship breakdown, particularly in high–value, complex and international cases.

As well as instructions from solicitors throughout England and Wales, his advice is sought on international jurisdiction and enforcement issues by lawyers from overseas. Andrzej is qualified to act as an arbitrator in financial disputes under the rules of the Institute of Family Law Arbitrators. Andrzej is also a mediator and conducts private financial dispute resolution.

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  1. Paul says:

    In a typical private law contact/custody dispute the resident parent is usually resisting contact or making contact conditional on use of a contact centre or somesuch, perhaps making allegations into the bargain. What evidence supports the idea that mediation works in these typical cases? It seems obvious to me that what the non-resident parent needs is the force of a court decision to at least get unsupervised contact going first and then force the couple into a process of mediation to work out the rest.

    Bluntly, when you are being denied contact by a recalcitrant ex-partner, the last thing you want is to start pussyfooting around attending mediation sessions. Your natural instinct is to get the matter before a judge and fast.

  2. Anonymous says:

    Paul seems to have been alive for a while, and I agree with him.

    I’m not surprised that those without much experience (or those who stand to gain) continue to think mediation is a great solution.

    I’ve heard of cases where mediation was dragged out intentionally by one party because the other was paying for it. It can also be dragged out to try and exhaust the patience of the other party, or get him to sacrifice his holidays.

    I’ve heard stories of one party being lied to and pressured to accept the terms of the other, because they are better terms than can be expected by going to court. In these cases, the other party can then go to court and say the father was uncompromising and controlling, blah blah blah.

    I’ve also heard of cases where the father is first told that his case is inappropriate for some obscure reason, only to be told several months later that the other party now wants mediation (it’s appropriate all of a sudden!)

    It seems to me that mediation just adds so much to opportunities for what others here have called the gamesmanship of family litigation.

    Save your time and money.

  3. Paul says:

    Thirty minutes direct interrogation of the parties by an inquisitive judge plus a bit of backbone, would resolve at least 75% of private law disputes at the very first hearing. If anyone makes an allegation it ought to be “woe betide you” if that turns out to be rubbish. And then walk the talk.

    The concept of Restitutionary Contact whereby time with a child stolen away from an NRP by a recalcitrant RP leads to equivalent time taken away from her and given to the NRP in addition to his court-awarded contact, ought to be a fundamental guiding principle of UK family law. A few years of that and the recalcitrant resident parent would all but disappear as a feature of family law. At least 75% of the problems in UK family law are of the courts own making.

    Paging President Munby . . paging President Munby.

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