Separate ways

Judge Stephen Wildblood did not mince his words. In the case of Re B (A Child) (Unnecessary Private Law Applications) [2020] EWFC B44, Wildblood criticised the parties and their lawyers for clogging up the ‘already over-filled’ family courts with ‘unnecessary, high-conflict private law litigation’.

He gave examples of cases that he said were an ‘inappropriate use of limited court resources’. These included matters about which junction of the M4 a child should be handed over for contact, which parent should hold their children’s passports, and how contact should be arranged to take place on a Sunday afternoon.

Wildblood’s message was clear: ‘Do not bring your private law litigation to the family court here unless it is genuinely necessary for you to do so.’ Instead, his advice was to ‘settle your differences’ away from court, using alternative dispute resolution (ADR) routes, such as mediation.

Changing dynamics

Wildblood’s concerns have a context. That context includes the changing dynamics of family life. Fewer couples are getting married and more than 50% of children are born to parents who are neither married nor in civil partnerships. Where relationships break down, the courts are becoming overwhelmed by applications to deal with financial and child-related matters.

Government cuts designed to save public expenditure served to increase delays, and that backlog was exacerbated by the Covid-19 pandemic. Hence the attraction, for the judiciary and policy-makers, of mediation.

'Do not bring your private law litigation to the family court here unless it is genuinely necessary for you to do so'

Judge Stephen Wildblood

Couples are looking favourably on some of the options and, driven by their clients, lawyers are seeking to provide more diverse services, including mediation.

The government has put its financial backing behind mediation, but the removal of legal aid for most private law family cases has reduced couples’ awareness of it and take up. As a result, cases that could be diverted away from court are joining an ever-growing queue.

‘Unprecedented and unacceptable’ delays are, as the Law Society and many others have warned, putting the family courts system under immense pressure. And as with the criminal justice system, these delays pre-dated the pandemic and have worsened because of it.

Statistical breakdown

The pressures on the system are evident in the numbers. Statistics for January to March 2022 show there were an estimated 68,134 new family law cases. While this is down 6% on the same period in 2021, the time taken to resolve cases is growing.

In care and supervision proceedings, the average time to a first definitive disposal is now at the highest levels seen since mid‑2012.

The latest figures released from the Ministry of Justice show that children who face being placed in the care of local authorities are experiencing delays of almost a year for their cases to start.

In January to March 2022, the average time for a case to reach first disposal was 49 weeks. That is up six weeks on the same quarter in 2021 and the highest average since 2012.

Only 17% of those cases were disposed of within the statutory 26-week time limit for completion, introduced in the Children and Families Act 2014 – down 5% on same period in the previous year.

Similarly, the time taken for private law cases to complete is at a record high, according to figures released in June. In January to March 2022, it took an average of 46 weeks for private law cases to reach a final order. This is up by seven weeks from the same period in 2021.

Updated family courts statistics, which were due in September, have yet to be published. However HM Courts & Tribunals Service (HMCTS) has previously estimated that it may take three years to return to pre-pandemic levels.

Last resort

Law Society president I. Stephanie Boyce has called on the government to ‘ensure, so far as possible, that there are sufficient fee-paid and full-time judges to deal with existing and new caseloads’.

Following the introduction of ‘no-fault’ divorces in April – the biggest shake-up to the family law system in 50 years – the number of divorce applications has grown. There were 12,978 new divorce applications in April 2022, compared to 8,729 in 2021.

The growing backlog, together with the removal of legal aid for most private family law cases and a greater awareness of the impact protracted battles have on children, have led to concerted moves to divert cases away from courts in a bid to achieve swifter, cheaper and more amicable resolutions.

During a rare public intervention given in July, Sir Andrew McFarlane, the most senior family judge in England and Wales, said that too many divorce cases were ending up in court. He told BBC Radio 4’s Broadcasting House that one-fifth of marriage breakups were wrongly ending up in court battles, as the courts were too often seen as a couple’s ‘first port of call’ instead of a ‘last resort’, because they think that they have a ‘legal’ rather than ‘relationship’ issues.

Echoing Wildblood, McFarlane said: ‘My feeling is that about 20% of the families who come to court to have a dispute about their children resolved would be better served by, at least first of all, trying to sort it out themselves in other ways.’

Mediation

Mediation is the method that the government has focused its efforts on to encourage out-of-court settlements. Where mediation is successful it provides a confidential, flexible, solutions-focused process, which is cheaper, faster and reduces conflict, helps parties communicate, and enables a wide range of tailor-made solutions to be considered.

Since 2014, it has been a legal requirement to attend an initial Mediation Information and Assessment Meeting (MIAM) before issuing a court application to resolve a family dispute, unless the couple qualifies for one of the limited number of exemptions.

Family law judges are under a duty at every stage of proceedings to consider if ADR is appropriate, and have a power to adjourn cases and direct parties to mediation in an attempt to reach an out-of-court settlement before continuing with the case.

But family lawyers argue that many judges are not robust enough in enforcing this requirement. According to barrister Ruth Kirby KC at 4PB, the requirement is being ignored and has become a ‘box-ticking exercise honoured more in its breach than in observance’.

While the government has introduced a voucher scheme and increased funding by £5.4m to help separating families reach agreements outside of court, cuts to legal aid in the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) caused the take-up to fall, because parties did not have access to lawyers.

Joanne Edwards, a partner at Forsters and former chair of the family lawyers’ group Resolution, says that since LASPO came into force, around 80% of cases in family courts have at least one unrepresented litigant.

As a result, she says, people are less likely to receive information about their options, including ADR routes, such as mediation. This has caused the levels of MIAMs, mediation initiation, and out-of-court agreements to halve.

'I look at every potential case by considering whether it is not suitable for mediation and triaging those cases out, not if it is'

Joanne Edwards, Forsters

Along with the Law Society, Resolution has urged the government to restore legal aid for early legal advice for family law cases, which would enable lawyers to assist in negotiating settlements and refer clients to mediation, leading to fewer cases ending up in court.

Of the couples who do use mediation, data from the Family Mediation Council suggests that 65% reach whole or partial agreements, and a further 3% only attended court to secure consent orders to formalise their agreements.

As McFarlane was keen to stress, there are some cases where a court is the right forum. This is typically where there are allegations of physical, sexual or financial abuse, and where legal processes could provide opportunities for further abuse. Litigation is also needed in cases where witnesses’ attendance needs to be compelled or disclosures orders are required.

Yet, lawyers say that mediation is a suitable means of resolving issues relating to finances or children in the vast majority of remaining private law family disputes.

Edwards, a mediator, says: ‘I look at every potential case by considering whether it is not suitable for mediation and triaging those cases out, not if it is.’ She says that the main ingredient for a successful mediation, is for all parties ‘to enter the process in the spirit of open-mindedness’ and be ‘genuinely willing to compromise’.

In contrast to court, mediation is less stressful as parties are not cross-examined. In addition, it is confidential, gives parties a greater sense of being heard, and offers creative solutions that are not available in court, such as apologies, explanations, or agreements to take certain action.

Suzanne Todd, a partner at Withers, says that because mediation is ‘future-focused’ it is not a platform where couples ‘trade past hurt and disappointment’. Rather, the parties are encouraged to look ahead .

Todd adds that it also provides an opportunity to ‘reality test’ all potential outcomes, allowing mediators to ‘walk a couple through the practicalities of their proposals’, and, apart from the initial meetings between individual parties and the mediator, the mediators’ fees for each session are shared by the couple.

The greatest advantage, Kirkby suggests, is that mediation enables a couple to reach an agreement that they can each live with, instead of handing over control to a judge. Their agreement can then become a consent order, which has the force of a court order once lodged with a court.

Conflict and complexity

There is a common misconception that it is only possible to mediate ‘easy’ cases, says Sara Hunt, senior counsel and mediator at Farrer & Co. But she believes that there is no reason for this when the mediator is an experienced family lawyer.

Withers partner Michael Gouriet agrees. He says that, contrary to popular belief, mediation can be successfully used in cases where there is high conflict or wide margins of disagreement. And he notes that when used in parallel with court proceedings, mediation can narrow the issues and focus the parties’ minds.

Other variations of mediation that clients may opt for are co-mediation, which involves two mediators; hybrid mediation, where the mediator meets each party separately; and child-inclusive mediation.

Kirby describes co-mediation, when one mediator is a therapeutically qualified practitioner and the other a lawyer, as the gold standard of mediation. She says it gives the ‘flavour of therapy without the commitment to it longer term, as well as the technical advantages of an experienced lawyer who can help the parties to understand the hazards of litigation’. These factors increase the likelihood of a successful outcome, she says.

Kirby suggests that hybrid mediation (or ‘shuttle mediation’) – in which the parties are in separate rooms and do not have direct contact with one another, and the mediator moves between them – offers safety in cases involving allegations of abuse.

Child-inclusive mediation can work well when there are issues involving children and the children themselves wish to have a voice, says Cripps partner Vanda James.

Todd also points to ‘Uncouple’, a model offered by Withers where a mediator will guide a couple through a bespoke process that can involve a combination of mediation, private evaluations and arbitration, which can be used at any stage of negotiations or court proceedings.

The downside of mediation, says James, is that there is no certainty of resolution, and without a court order, any agreement is unenforceable if one party changes their mind.

A move online

As a result of the Covid-19 pandemic, the use of remote mediations has increased enormously. Edwards says that an online process can be highly effective as it emulates the in-person mediation model, putting people in separate rooms for a ‘time out’, and ensures that everybody can feel that they have had their say.

Getting the right mediator can be an important first step. James says that personal recommendations are always preferable, adding that parties should ensure that a mediator is a Resolution-trained lawyer-mediator or is registered with and accredited by the Family Mediation Council.

Parties should ask questions about how their mediator works, says Edwards, including establishing their general availability (particularly when court deadlines loom), their fees, experience in the particular issues which need to be resolved, and whether they work with others, such as a second mediator.

There is a danger that, due to the court backlog, parties may feel pushed into mediation as a way to have their case resolved swiftly. Norman Hartnell, joint managing director at The Family Law Company, insists that this would achieve nothing, as a failed mediation simply means the couple ends up in court.

Mediation, stresses Kate Daly, a divorce coach and founder of Amicable, should not be a ‘gateway’ or the sole alternative to court. Rather, she says, cases should be triaged before they are issued and mediation offered as a possible alternative, if it is appropriate.

Daly accuses the government of ‘lazily sign-posting divorcing couples to mediation as a single non-court dispute resolution option’.

‘For too long this failure has been “dressed up” as people “wanting their day in court”, when in reality they have often not known where else to go and have been funnelled into the adversarial arena of the court,’ Daly says.

‘One size does not fit all,’ she adds, arguing that divorcing couples need effective signposting to a variety of pathways so that they can choose which one works best for them. She says triaging cases only takes place once proceedings have been issued, and the water is ‘muddied’ as it is solicitors who are responsible for advising the public about the different services on offer.

Since Gwyneth Paltrow popularised the idea of ‘conscious uncoupling’, Daly says the legal market has expanded to provide a ‘rich and varied’ set of divorce services for proportionate costs.

But Kirby concludes: ‘When dividing family finances and children’s time, there is no easy process. It’s painful and difficult and requires compromise and forgiveness. That human process is the same, regardless of which method of dispute resolution is chosen.’

 

Catherine Baksi is a freelance journalist

 

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