Briefing

'Mapping Paths to Family Justice' - what is non-court dispute resolution really like for clients?

Posted by : Annmarie Carvalho | Date posted : 20/11/2014

The Mapping Paths to Family Justice Briefing Paper published this summer was a fascinating look at people's perceptions and experiences of the different methods of family non-court dispute resolution. I summarise below ten of the report's key findings about what non-court dispute resolution is really like for clients*.

Ten key findings and conclusions…

 

1. Education education education

47% of couples divorcing or separating between 1996 and 2011 sought no legal advice at all[1]. This shows that there are many who could benefit from advice but who are not accessing it; the most likely reason being financial constraints.

Many people still equate going to see a solicitor with going to court  45% of those interviewed in one of the national studies had never heard of mediation, collaborative law or solicitor negotiations[2]. This issue is particularly acute for those in lower socioeconomic classes who were the least likely to have heard of the different methods of non-court dispute resolution. The Paper also found that most of the guidance given by practitioners to clients included a 'strong steer' to avoid court if possible[3]. This shows the mis-match between what the general public think family lawyers do and what they actually do.

Clearly, we need a continuing campaign to educate the public about non-court DR solutions.

 

2. MIAMs to DRIAMs?

One of the key recommendations of the report was that Mediation Information and  Assessment Meetings be renamed DRIAMs[4], with mediators using the sessions to explain to clients the full range of DR options rather than just mediation. Clients would then have the information they need to make an informed choice about what will work best for them rather than being subjected to a 'hard sell' by a person with a vested interest in pushing mediation (which is what some participants in the study felt they had been subjected to during their MIAM).

Having said that, practitioners need always to keep in mind the risk of overwhelming clients with options, given feedback from some participants of feeling 'bombarded' with information at a time when they were not emotionally ready to process it[5].

 

3. The importance of effective screening for mediation

Possibly the most concerning aspect of the Paper's findings was that, in some cases, screening for domestic violence and relationships involving coercive control was not being carried out effectively. The interviewers spoke to 56 people who had experienced mediation and reported back that, in 13 of the cases, effective screening had been sidestepped and further, that there had been other cases referred to mediation or accepted by mediators in which the relationship had involved an element of violence[6].

In light of this, the paper's recommended 'best practice' is for clients to have separate MIAMs and that mediators have separate initial meetings with clients prior to commencing the mediation.

 

4. Pressure to mediate

The paper drew attention to the fact that, while mediation is a voluntary process, people often felt pressure to enter into mediation even in cases where it may not be appropriate. The main reason for this was the fact that legal aid remains available for mediation and/or because mediation was perceived as a low cost option. Some interviewed reported feeling that they 'had no real option to refuse'[7]. However, mediation is not suitable in all cases and has less chance of success if those involved feel pressured into it.

 

5. Objectivity or partiality?

Common feedback from the interviews was that clients liked the partiality of having a solicitor 'on their side' or 'fighting their corner'[8] in solicitor negotiation (which clearly differs from a mediator's neutrality). On the flipside, some participants reported that such solicitor involvement, particularly negotiations by correspondence, can raise the temperature of a dispute.

Some interviewed said that not having to see or talk to their ex was a strength of solicitor negotiations or even a necessity[9]. Indeed, those interviewed who had gone through mediation emphasised how difficult they found interacting with their ex in the sessions[10].  This can be particularly acute where one client is not emotionally ready to participate in the mediation whilst the other is; another reason why a thorough screening process prior to starting mediation is crucial in order to ascertain the clients' emotional states.

 

6. The voice of the child

The survey found that child-inclusive mediation is used infrequently. While many of those interviewed said that there was still a focus on the child's welfare in non-court dispute resolution, some thought that considerations of the child/children's welfare was prone to being conflated with the welfare of the resident parent. One of the paper's key recommendations was to include 'children's voices more systematically both in mediation and in other (non-court dispute resolution) processes'[11].

 

7. Perceptions of gender inequality

The paper concluded that there is 'a strong and regularly stated perception of gender bias in mediation'[12] and many men felt that the process was biased against them due to female mediators apparently siding with the female half of the couple. The authors' recommendations therefore included a more frequent use of gender balanced co-mediation.

 

8. Mediation frustrations

The fact that mediators only provide information rather than advice was frustrating for some and in some cases left them feeling unsupported. This is particularly acute given that increasing numbers of parties are now going to mediation without the benefit of legal advice in the background. Another source of disgruntlement amongst those interviewed was the non-binding nature of mediated agreements.

 

9. Satisfaction rates:mediation and solicitor negotiation

Subjects were asked about their satisfaction with the dispute resolution processes as well as the outcomes in their cases. Over two thirds of those interviewed about their experience of solicitor negotiations reported having been satisfied with the process, whereas less than half of them reported being satisfied with the outcome[13]. When it comes to mediation, almost three quarters expressed satisfaction with the process and just over half were satisfied with the outcome.

However, taking a more long-term view, 40% of those interviewed about mediation said that it had improved their communication with their ex while this was felt by less than a quarter of those who went through solicitor negotiation. Having said that, 30% of those who went through solicitor negotiation felt it had reduced conflict compared with a quarter of those who went through mediation[14].

 

10. Satisfaction rates:Collaborative Law

While the collaborative law sample in the survey was very small, participants reported high satisfaction levels with both the process and the outcome of collaborative law. The feedback from practitioners reflected mixed views regarding the disqualification clauses in Participation Agreements and a concern that the requirement for clients who sign these to change solicitors if the matter went to court could put clients off collaborative law. In fact, this did not appear to be the case with those interviewed who were not put off by these clauses[15].

It is essential that practitioners take on board this feedback about what non-court dispute resolution is really like for clients, together with the recommendations of the authors regarding working practices. The report also highlights the need for practitioners to continue to spread the message to the public about their non-court options and the undeniable benefits of reaching agreement away from court. 

 

If you require further information on anything covered in this briefing please contact Annmarie Carvalho (annmarie.carvalho@farrer.co.uk; 020 3375 7174) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the Family page on our website.

This publication is a general summary of the law.  It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2014

 



* The Briefing Paper was the result of a three year research study funded by the Economic and Social Research Council and undertaken by the Universities of Exeter and Kent[1].  

The research feeding into the paper comprised three stages; firstly a nationally representative study (of almost 7,000 people in total), secondly telephone or face to face interviews with those with experience of non-court family dispute resolution (legally aided and private) and practitioners and phase three which comprised recordings of a small number of examples of each one of the processes.

 

[1] Pg 6

[2] Pg 4

[3] Pg 6

[4] Dispute Resolution Information and Assessment Meetings as per pg 32 of the report

[5] Pg 6

[6] Pg 8

[7] Pg 6

[8] Pg 9

[9] Pg 9

[10] Pg 9

[11] Pg 15

[12] Pg 11

[13] Pg 9

[14] Pg 20

[15] Pg 13