HIS HONOUR JUDGE CLIFFORD BELLAMY

DESIGNATED FAMILY JUDGE FOR LEICESTER

MEDIATION NEWSLETTER

Some while ago I agreed to publish a newsletter dealing exclusively with the subject of mediation. Here it is! I want to begin with a few words of thanks. I am grateful to those who have given their time to write the pieces that appear below. I am especially grateful to Jan Flawith for co-ordinating their contributions. I also want to take this opportunity to thank those mediators who make themselves available on a pro bono basis to assist parents at First Hearing Dispute Resolution Appointments.

The combined impact of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) and the family justice reforms implemented in 2014 is that the role of mediation in the family justice system has assumed even greater importance than before. As the pieces which appear below make clear, mediation is not just of benefit in private law disputes relating to children. It also has a role to play in public law disputes and in applications for a financial remedy within divorce and civil partnership proceedings.

I hope you will find this newsletter interesting and informative in equal measure. More than that, I hope this newsletter will raise awareness of the services that are available locally act as a reminder to each of you to make best use of those services for the benefit of children and families in our area.

Finally, you may be interested to know that our local Training and Education Committee is planning to hold a seminar on non-court dispute resolution. Look out for details on our local Family Justice Board website –

Mediation and Legal Aid

Legal Aid is still available in mediation, subject to financial eligibility. There are capital and income limits to be met and evidence must be stringently checked, but once assessed the eligible party receives the cost of his/her Mediation Information and Assessment Meeting[1] (‘MIAM’) free and also any mediation sessions, unless their circumstances change. In an effort to encourage more parties to mediate, the Legal Aid Agency will also fund the costs of the MIAM for the non eligible party and also the first session of mediation. Yes, that’s right, regardless of their financial circumstances, they get a free MIAM and a free mediation session!

Once a legally aided party has started actual mediation, they can obtain legal advice from solicitors holding a legal aid contract, providing the solicitor has a CW5 (Help with Mediation) form, signed by an accredited mediator, confirming that mediation has started. The solicitor will also have to assess the party’s financial eligibility. In cases where there is a financial dispute, the solicitor can also claim a further fee for drafting a consent order.

A ‘family dispute’ for the purposes of falling within the scope of legal aid for mediation is set out in Schedule 1 Part 1 paragraph 14 of LASPO. This limits the scope of Family Mediation to assisting in the resolution of family disputes about legal rights and duties whether or not proceedings have yet been issued. This applies equally in both private law and public law children matters.

Janet L Flawith

At-Court Mediation

‘At-court mediation’ is not a new phenomenon. It has been called by different names – ‘in-court’ , ‘at-court’. It has been piloted and trailed since the 1970s in various guises. The common factor in all of it’s incarnations, has been the underlying drive to help parties, already in the court arena by providing an opportunity to step outside the court process and engage with a dispute model which puts them in control of the decision making process.

Hitherto, mediation has been described as ‘operating in the shadow of the law’. To an extent this is an inevitable fact but recent changes in Statute law and the pronouncements of the President supporting non-court dispute resolution have enabled mediation to emerge from the chrysalis to become a fully-fledged discipline in its own right. It has come of age and is recognised as a legitimate part of the non - court dispute resolution paradigm.

In the Family Court at Leicester a group of seven mediation services operate the pro-bono ‘at-court’ mediator rota on alternate Thursdays. We work with CAFCASS to identify those cases which might benefit from being dealt with outside the court arena.

‘At-court mediation’ is a misnomer. We do not offer mediation at court, rather we see both parties to explain about mediation and other forms of out-of-court dispute resolution. We screen for suitability and, if the parties are willing to engage with the process, facilitate next steps in the mediation journey. Parties are given information about local mediators. If one party has already seen a mediator, we help the second party to contact the same service to arrange a MIAM. Where neither party has seen a mediator, they are given independent information enabling them to make an informed choice about which mediation service best meets their needs.

‘At-court mediation’ is not without its challenges. For many parties, reaching the court door is a step in a long and already litigious process at which point they want to see a Judge not a mediator. Mediators recognise that there is still a long way to go in breaking into this mind-set. Court staff are identifying cases at point of issue and signposting them back to mediation and we are very grateful to them. Our challenge is working with the court to free time for those cases where mediation is not suitable and where the assistance of solicitors and the court is required to help the parties to resolve their issues.

Anita Hall

Shuttle Mediation

In general the mediation process consists of a series of meetings where the mediator meets with the parties together to assist them in reaching an agreement or making informed decisions on their issues relating to separation.

However there are some situations where the parties could still benefit from engaging in mediation but do not wish to be face to face. The circumstances are usually where there are allegations of domestic violence, power imbalance, a fear of being unable to articulate effectively and generally just a strong desire never to see their former partner again!

In these circumstances the mediator should consider if it is appropriate to meet each party separately as a means of facilitating negotiation or movement.

The advantages are that an agreement can still be reached without the necessity of court proceedings as each party may feel able to be more open when just in the presence of the mediator and not intimidated by the other.

The disadvantage is that the mediator may, at best, be reduced to a role of messenger or used as a scapegoat and accused of relaying inaccurate opinions, proposals and information.

The process can also take much longer as meetings are inevitably longer if the mediator is moving between each party and repeating what has been discussed.

In some situations it may therefore be appropriate to start the mediation process with each party alone but then when each has become more confident with the mediator and the process to move to face to face mediation.

Danka Neuborn

Direct Child Consultation

It has long been established that some children have felt that they have had no voice when their parents have been separating or divorcing and that very important decisions relating to arrangements concerning them have been made without any regard to their wishes and feelings.

There are, therefore, mediators who are trained specifically to be able to speak to children,as part of the mediation process, but without their parents present, in order to obtain their views and allow them to have a voice.

This can only occur if the parents are willing for them to be involved and the children wish to be so. Clearly the children must be at an age or have the maturity to be able to articulate their feelings and wishes.

There must be screening for domestic violence and child protection issues before any direct consultation can be considered and if appropriate a check made that Social Services are not involved.

The children must feel free to attend such a meeting and not to be cross- examined thereafter by the parents and there is a clear understanding that what is said by the child is confidential unless he/she wishes it to be conveyed to the parents.

The mediator has to understand the family’s situation, culture and what has been said to the child thus far in addition to gaining a “picture” of the child from the parents.

The majority of children and parents who have been involved in child inclusive mediation have stated they found it helpful as it can dispel misunderstandings and enables children to ask questions and offer their suggestions.

To find out who is qualified to undertake DCC in this area, please check:

Danka Neuborn

Mediation and Public Law

The Public Law Outline[2] (‘PLO’) requires local authorities to do a lot more work before issuing proceedings and this includes considering other family members as possible carers for the child(ren). Some areas regularly hold Family Group Conferences to work with the family to find ways to safeguard the children.

In areas where there are no such facilities, family mediation can assist. Legal aid is only available if there is a legal dispute between the parties as the Legal Aid Agency will not fund mediation which is in anyway therapeutic in nature, rather than an issue that could be litigated. For example, services provided which focus on trying to define issues and concerns, improve relationships and communication between family members and any other party involved such as a Local Authority does not fall within the remit of Family Mediation for the purposes of legal aid.

Here are two examples, one of a case that would be funded (subject to financial eligibility) and one that wouldn’t:

  • The local authority has a Care Order in place for a child. An extended family member applies, with the support of the local authority, for a Special Guardianship Order that would discharge the care order. This is opposed by the mother and the case gets referred to mediation. This case would fall within the remit of publicly funded family mediation as it is a dispute.
  • The local authority has concerns about the neglect of a child, but there has been a breakdown in the relationship between them and the parents. The parents are refusing to engage, frustrating local authority attempts to address these concerns. It is felt the use of a mediator could help reduce the tensions in the relationship. The issue in this case relates to child protection concerns and it may be that this type of dispute would be unsuitable for mediation in any event. However, if there were a role for a mediator in these circumstances it would be to help improve the relationship between the local authority and the parent(s) in order to assist with communication and in defining the issues and concerns in an attempt to find solutions that may alleviate local authority concerns about the child’s welfare. The fact that a failure to address these concerns could lead to the local authority initiating proceedings would not be sufficient to bring this within the scope of legal aid funding in terms of Family Mediation. Again this work is more therapeutic in nature and could therefore fall within the potential remit of local authority under their duty of care.

An ADR Pilot Project in 1993, one of the only studies undertaken on the use of mediation in public law disputes, made a recommendation that the courts should consider mediation at an early stage in the process. This is particularly relevant when a special guardianship order is being considered. Regulation 3 of the Special Guardianship Regulations 2005 is quite specific in facilitating the use of mediation to ensure continued relationships and contact.

Mediation is normally confidential. Where the local authority is involved, the parties have to waive that confidentiality so that an agreed report can be sent to the social worker. Mediators need to be aware of safeguarding of children. Information will need to be shared with the mediator prior to the sessions, to ensure that any proposals do not place a child or party at risk. This information must also have been shared with the parties coming to mediation, to ensure the mediator’s impartiality. It is possible for the social worker to attend a session or part of a session; the reports can be fed back at LAC review meetings.

Now legal aid has (mostly) been removed for private family disputes, mediation can be a way of helping a family member negotiate with the parent(s) about contact. Mediation can also assist when the relationship between the holder of a special guardianship order and the parent(s) has deteriorated.

The viability of mediation in a public law case would need to be fully explored by the lawyers, their clients , the court and the mediator before setting up. It offers a value for money alternative for local authorities and a more positive way of engaging the parties.

Janet L Flawith

Family Financial Resolution Arbitration

In 2012 theInstitute of Family Law Arbitrators(IFLA) ( under the chairmanship of the former Lord Chancellor, Lord Faulkner, launched a scheme which provides for the arbitration of financial resolution disputes. Arbitrators are highly experienced family financial resolution lawyers trained by study and examination by the Chartered Institute of Arbitrators in the principles of the Arbitration Act 1996. They consist of former judges (both Family Division (e.g. Sir Peter Singer/Sir Hugh Bennett) and Family Court), leading family law silks and senior family solicitors. Comparison with private medicine/the NHS is not entirely accurate but suffices to emphasise the parallels that exist between the Courts and the private judicial system afforded by arbitration.

Why arbitrate?

The deficiencies in the Court system imposed by too much work and insufficient judicial resources are well known. Unacceptable delays between hearings; cases removed from the list on the day; the wretched “floating” system; poor facilities at Court; possible publicity; the need for a full Form E if one intractable issue remains; the 'Overriding Objective' provisions in both the FPR and CPR requiring individual cases to take their place in the system; the amended PD27A re bundles and strict consequences for lawyers who do not comply with orders (see Munby P inRe W (Strict Compliance With Court Orders)[2014] EWHC 22 (Fam)) are among the pitfalls for a professional lawyer trying to carry out his/her job today. Whilst all of these onerous additional requirements are perfectly understandable from a judicial perspective, they leave the practitioner with further hoops to jump through, more to go wrong and more costs to justify.Further, arbitration cases do not have to jostle for hearing time alongside 'quick applications'injunctions and care cases.

The Arbitration Act 1996

In all probability the Arbitration Act 1996(the Act) may be unfamiliar to many family lawyers. In short the process rests on a contractual appointment of an arbitrator (viaForm ARB1under the IFLA scheme), whose decision the parties agree in advance shall be binding, subject only to any 'challenge' available under the Act, and in a financial remedy case, final approval by the court. For the court’s likely approach in a financial remedy case, see Munby P inS v S (Financial Remedies: Arbitral Award)[2014] EWHC 7 (Fam),[2014] 1 FLR 1257,at para [21]:'It could only be in the rarest of cases that it would be appropriate for the judge to do other than approve the order.' Grounds of challenge are set out in the Act at sections 67 (lack of jurisdiction), 68 (serious irregularity) and 69 (appeal on a point of law). Arbitration is not meant to darken the door of the court. However, the arbitrator, whose appointment rests upon a contractual basis has no coercive powers. Arbitration therefore takes place in the shadow of the law and parties to an arbitration know that the court can step in to support the process, in particular by granting a stay of competing legal proceedings commenced in defiance of an agreement to arbitrate the dispute (s.9), enforcement of the directions of the arbitrator, if required (s 42) the granting of a witness summons for people to attend before an arbitrator (s 43) and general injunctive relief (s 44).Both the arbitrator (s 33) and the parties (s 40) have a duty to promote the fair and expeditious resolution of the arbitration, pursuant to s.1 of the Act. Sections 1, 33 and 40 are the triangulation points of the Act applications, must be determined in accordance with the law ofEngland andWales.

Advantages

Via IFLA (see the website infra), the parties may choose their arbitrator who will provide continuity of tribunal throughout. Procedures are versatile/flexible and are discussed with the lawyers. Times/venue are arranged to suit the convenience of the parties. It is common for lawyers to remain fully engaged. Arbitrations can range from paper adjudications through to fully contested hearings. Discrete issues may be arbitrated (e.g. if collaborative negotiations/a mediation become stuck on one issue, that can be arbitrated). A completely bespoke, confidential and fully private service is offered. Speed and saving of cost are both highly likely. Parties/their lawyers have access to the arbitrator by telephone and email. The parties own the procedure to a far greater extent than they can court proceedings.