Mediation Assessment

Mr Ministrio O Justice and Ms Accessa D Justice have been referred to this service following a breakdown of their relationship, for the purposes of a mediation assessment appointment. I have met with both parties and can report as follows:

  • There is a significant power imbalance as Ministrio is the sole breadwinner and Accessa is financially dependent upon him.
  • Mr Justice has been accused of serious acts of violence towards Ms Justice and there is concern that both she and the parties’ children (Litiganta and Citizen) are vulnerable and at risk of harm. The court may in due course need to make findings about this. There are clearly significant disputes of fact and interpretation that make progress very difficult.
  • Throughout our session Mr Justice found it very difficult to be positive about Accessa, and was unable to describe her without resorting to denigratory and belittling language. He was unable to acknowledge her contribution towards the relationship, financially or otherwise.
  • When attempting to discuss the issues with Ministrio the conversation had a tendency to become circular as Ministrio repeatedly sought to discuss the immediate financial issues, diverting the discussion away from the broader issues and the longer term consequences of any settlement.
  • Ms Justice is emotionally fragile and tells me that she is thinking of “giving up”. I am concerned for her welfare.
  • The relationship between the parties has (on Accessa’s account) been characterised by repeated attempts to bully and control Accessa.
  • Mr Ministrio Justice has adopted a very fixed view of what the outcome of  the process should be, and is unable to fully engage with the open and honest exploration of the issues that the mediation process depends upon. Mediation is unlikely to be successful unless both parties are ready to adapt their views and compromise.
  • There are serious and complex legal issues that we are unable to resolve through this process.
  • The communication between the parties is poor and trust is non-existent.

I therefore certify that in my professional opinion this case is not suitable for mediation.

Lucy Reed

Member of the Institute of (Made Up) Mediators

A GIFT from the MoJ

I was charmed to receive in my inbox today an invitation to help The Man promote the new policy of compulsory thinking-about-mediation. How kind. The editorial and content team at the MoJ thought the press release might be “good fuel for Pinktape”. Adrian would like me to help him raise awareness “that there is an alternative that is likely to cost them less and be quicker” than court. But you see I am one step ahead of him – in a wholly uncustomary failure on the part of the Government to listen to those at the coal face, Adrian has apparently neglected to notice that I have already posted on this topic (here).

But waste not want not. He is correct, the press release is combustible and I can generate some heat at least, if not light.

Firstly, I will take the cheap points (if I may). They are an unnecessary distraction from the more meaty ones:

  • The new scheme is not an adjunct to the Family Proceedings Rules because they will be revoked as of 6 April 2011 and replaced with Family Procedure Rules 2010. It doesn’t matter in the slightest, but if you are going to tinker with the name of your rules for no apparent reason you ought not to get them wrong in your own press release. Four times.
  • The choice of language is pretty base: “More Separating Couples To Be Spared Court Battles!”. Fighting each other through lawyers”. I actually do wear body armour at court. Actually. Sometimes we even settle cases by arm wrestling in the advocates room. Or by particularly vicious bouts of conkers. I do the Hakka every morning before I leave the house to get myself in the right frame of mind.
  • I like this best: “Jonathan Djanogly said: “Nearly every time I ask someone if their stressful divorce battle through the courts was worth it, their answer is no.”” (*stage whisper* Mr Djanogly? Um. This is what we battling lawyers call “a leading question”.)

Personally I don’t have quite sufficient stamina tonight to construct a careful counter to Mr Djangoly’s casual approach to statistics and evidence. But here is what is glaringly obvious from the face of the fatuous press release. 

Djangoly repeats the urban myth that “Currently many people repeatedly go to court to argue over matters they are better placed to sort out themselves – like securing 30 minutes extra contact time or varying their allocated contact days. This is expensive and emotionally draining for all concerned.” B*llocks do they. The vast majority of cases which are in court are about more complex issues than this, and to suggest that this is in any way typical is quite insulting to those who do have to resort to court. Further, those poor people who find themselves arguing in court about 30 minutes of contact time or swapping days are either wholly unreasonable (and therefore unsuitable for mediation), control freaks (and therefore unsuitable for mediation) or have a partner who is wholly unreasonable, a control freak (and therefore unsuitable for mediation), or are cases where arguments about details such as these are indicators of something profoundly dysfunctional within the family unit and of an inability on the part of one parent to focus on the child’s needs (and therefore unsuitable for mediation). What is lacking in this bluster about how the courts are full of trivial disputes between parents who should know better, and who would miraculously resolve all their disputes if only they would stop to think is any real analysis of the quite different profiles of that category of cases which are presently successfully mediated and that tranche that under the current system go to court. Even if it were correct that 2/3 of those who currently mediate reach full agreement (whether cases remain resolved 18 months down the line is a different question and likely has a different answer), that does not mean that the second category of cases would be capable of such high rates of success.

Do not think I am opposed to mediation. I’m not. It’s not mediation or the promotion of mediation I’m attacking. It’s the promotion of mediation as a potential solution for everyone (with the exception of a limited category of dv sufferers) and the fingers in ears approach to suggestions that there may only be a smallish proportion of the types of cases that currently go through the courts that can successfully be diverted elsewhere.

“Mediation is often quicker, cheaper and less confrontational than going to court. Research shows it can cost a quarter of the price and take a quarter of the time of going to court” [my emphasis]. It says here. No doubt this is true. But what those of us with an eye on budgetary matters will really want to know is whether it is cheaper overall, when the costs of both successful and unsuccessful cases are considered. No recognition is given to the fact that cases that mediate unsuccessfully are by their nature more lengthy, more expensive (emotionally and financially) and (because they are more entrenched) more confrontational. More mediation means not just more successful mediations (we hope), but also more unsuccessful mediations (we suspect). Will the burden on the public purse be reduced overall? Will the outcomes overall be better for families? The government doesn’t know because it hasn’t really analysed this issue.

It goes on: “National Audit Office figures on legally-aided mediation show that the average time for a mediated case to be completed is 110 days, compared to 435 days for court cases on similar issues. Mediation is also often cheaper than going to court – data from Legal Aid cases show the average cost per client of mediation is £535 compared to £2,823 for cases going to court.” I suspect that “similar issues” comprises some sophisticated system of categories such as “residence” or “contact” or “applications for s8 orders” – if I am right this comparison tells us nothing other than that the complex cases litigate, the easy ones don’t. And the average cost of mediation versus cases going to court is inevitably skewed by the inclusion of those vastly complex cases that run into the tens of thousands of pounds, and which of course could NEVER be solved by mediation. It will no doubt include no doubt those children cases involving domestic violence, with al the fact finding and expert assessment that such cases require. Cases that the government accepts are not suitable for mediation. These are bad comparisons. And in any event the figures are drawn from the LSCs own records, who have quite notorious problems historically with the robustness of their statistical and management information.

Finally, what the press release doesn’t mention is Djanogly’s response to questions in interview on Today this morning, where he confirmed a) that there was a target for the success rate of mediation and consequent reduction in court cases (although he didn’t go on to say what it was) and b) that the compulsory mediation assessment is with a view to moving on to compulsory mediation (no surprise but it’s notably absent from the PR doc). All well and good if this new scheme results in an upsurge in the numbers of cases going to mediation and reaching good solutions, but compulsory mediation raises oh so many more anxious questions.

So, there it is. My “mediation assessment and information session” assessment and information session. Is it a bit fighty? I can do compromising and sensitive too, but that would make things terribly dull around here.

I need a bubble bath.

Practice Directions to the New Family Procedure Rules 2010 – Mediation PD

I posted recently about the Practice Directions to the new Family Procedure Rules which come into force on 6 April. Practice Direction 3A Pre-Application Protocol for Mediation Information and Assessment has now been published along with a guidance note and Compliance Form FM1.

It provides that parties to private family proceedings must prior to issue have explored whether mediation might be an alternative method by which to resolve their dispute by attending a mediation information and assessment meeting. If they have not done this the court is likely on first hearing to adjourn pending attendance at such a meeting which constitutes non-compliance with the Protocol.

There are of course exceptions to the requirement to attend a Mediation information and assessment meeting. They are entirely those that I would expect to see, and they are numerous. For example domestic violence (but only where the police have been involved or an order has been sought in the last 12 months), urgency (but only where there is a risk to life, liberty or physical safety or to the home AND where any delay caused by mediation would cause a risk of significant harm to a child, significant risk of a miscarriage of justice, unreasonable hardship or irretrievable problems in dealing with the dispute (such as an irretrievable loss of significant data – which I take to be a nod to post-Imerman search orders).

It does strike me as odd that in a d.v. case where an applicant has fled or is fleeing the home and has yet to issue FLA Pt IV proceedings (or has no need of doing so because they are safely elsewhere, or who is too petrified to do so) one party wishes to issue s8 proceedings they would need to CROSS THRESHOLD in order to bypass mediation (the alternative would be to go through the motions and secure confirmation from a mediator that the case is unsuitable but this causes delay). I appreciate that there are a number of other exceptions which might apply to an application by the person fled from (for example that the whereabouts of the other party are unknown to the applicant), but the reference to significant harm nonetheless remains anomalous.

The problem with this long list of exceptions (and the almost comparably long list of exceptions to the exceptions) is that it may be rather more of a leaky bucket than a sieve. It’s practical effect is likely to be an increase in paperwork and irritation in many cases, and possibly an obstacle to justice in others, and I suspect (but am happy to be proved wrong) that it will not ultimately result in all that many more people using mediation, nor that it will result in a significant upshift in the numbers of people reaching durable, safe and fair agreements. I suppose it’s worth a try and I will embrace it, promote it, encourage my clients to comply with the spirit of it – but I’m skeptical.