Sunday, 6 October 2013

Mediation... Addressing the Failure

My thanks to Marilyn Stowe for her recent blog highlighting a Guardian article. That article raises the concern that the number of couples attending mediation has fallen by 47% since legal aid was abolished.

Marilyn's view was that with fewer solicitors involved in legal cases, as few parents now qualify for legal aid, litigants-in-person are unaware of the need to attempt mediation (unless one of the exemption criteria are met - details of which are included in the 'pre-action protocol' and within our guide on mediation) prior to attending court .

When working out why fewer couple are attempting mediation, it's worth looking at the experience of a parent, applying to court in person. The C100 application form used for most family court proceedings (residence, contact, specific issue and prohibited steps orders) contains no information about mediation. It does not mention that couples should attempt mediation before applying to court (unless one of the 15 exemption criteria are met). Its only reference to mediation is asking the applicant if an FM1 form is included (with no description as to what an FM1 form is!)

In short, the likely reason for parents not attempting mediation is a failure by the courts to notify them of the need. I suspect that the main culprit for the drop in numbers is chaos in the family proceedings courts caused by court closures and mergers (under-resourcing, overload), combined with magistrates not being aware of Practice Direction 3A (the Pre-Action Protocol for Mediation Information and Assessment, which supplements Part 3 of the Family Procedure Rules 2010) and the requirements regarding mediation. Does anyone in the court check if an FM1 has been provided, or ask why not? Do the magistrates tell the parents to attempt mediation first? Has the court clerk advised the magistrates that mediation should be attempted first? Given the cut backs imposed on the courts, it's hard to attribute blame to the beleaguered staff, and perhaps responsibility should rest with the Ministry of Justice for poor planning. It seems that the process has gaping holes.

We had hoped (somewhat naively) that the Low Commission review into the impact of legal aid cuts might come up with some solutions to help parents, but were disappointed to see so many of their recommendations starting 'the next Government should...'. The horse has bolted, and the recommendation is that the next farmer who owns the land should close the stable door. We need to wait for another election, a new Government, committee meetings and more debate and consultation despite there being an immediate need, and one which we've known was coming for years. The failure, again, must rest with the Ministry of Justice.

Online legal resources, despite having received considerable state funding, scratch their virtual heads in confusion when asked simple things like 'what is a statement'... and point the parent to matters relating to schools and children with special needs.  Try for yourself... ask Lisa (and then ask yourself if this resource meets the needs of the litigant-in-person who attempts to navigate the courts, lacking a solicitor to guide them).

We received no state funding. We've had no help. We've tackled the problem but the MoJ does nothing to advertise the in-depth resource we provide. Because our main online app(lication) is free (to ensure information is available to the unemployed, low paid and disabled) and self funded, we lack an advertising budget. We have approached the MoJ for funding but had no reply. Despite this, more people download the C100 court form from our site than from Her Majesty's Court and Tribunal Service (HMCTS) website. We had approaching half a million hits last year BUT, many still do not know of our existence.

We suspect that our site doesn't meet the Government's objective to have fewer parents in court (despite ours giving the strongest recommendation for mediation) to cut costs. We perhaps offer too much legal information, making the courts more accessible, which defeats the Government's objective. However, a more informed, more prepared, and better organised litigant often cuts court time! Regardless, the reason why too few parents attempt mediation must be that the courts fail to implement Practice Direction 3A.

Other legal information resources for parents either fail to notify parents of the need for mediation, or use language which suggests mediation is a nice idea rather than a requirement. The Coram's Legal Centre uses the following language 'Most parents who apply to court for a Contact Order try mediation first. The courts generally like to see that the parents have attempted to resolve the problems themselves. In many instances, legal aid will only be granted where mediation has been tried.' The language is out-of-date, and does not set out the requirement criteria set out in the pre-action protocol (ours does!).

Parents too often fail to get detailed and accurate information which satisfies the complexities of their case. I came across one recently (experiencing some horror) which involved risk of international child abduction. The parent had been told by a solicitor (wrongly) that mediation must be attempted before he applied to` court for a prohibited steps order due to flight risk. Mediation is NOT required when the application is urgent (the 10th exemption in the pre-action protocol). In a situation where there is risk of flight abroad, it is appropriate (and wise) to apply for an ex-parte prohibited steps order. To do otherwise... to advise a course of action which tips off the parent who represents a real flight risk via an invitation to mediation... was, in my opinion, negligent. 

Advice deserts are bad. The wrong advice can be fatal.

We provide guides on prohibited steps orders, and making applications in urgent situations, including where there is risk of international child abduction. Also information on defending against a leave to remove application (where the parent who wishes to emigrate seeks the court's permission to relocate abroad with the children). We don't give the parent a list of mind boggling forms to complete and send them off to the HMCTS site (to try to find the well hidden court forms). We link directly.

If HMCTS referred parents to our site, and asked courts to do the same, there wouldn't be these problems, but instead they refer parents to the Citizen's Advice Bureau (whose staff are overloaded or lacking in training in some of the complexities of court proceedings).

The statistic often bandied about is that only 10% of separating parents access the courts, suggesting this is a good thing. We don't believe so. Between 25% and 60% of children (depending on the source of the statistics) lose contact with their non-resident parent after two years of parental separation. The low number of parents who access the court may be a success for the Government's budget, but it is an abject failure for child welfare.

The immediate solution
  • CAB staff should use our online resources to assist them. Other charity staff do. Endorsements can be viewed on Linkedin; which include the President for the International Federation for Parenting Education, various CEOs of charities, barristers, social workers, mediators etc.

  • The Family Proceedings Court should ensure that every applicant to court is pointed to our Family Law App, and in particular, our guide on mediation;

  • If the Government wanted parents to attempt mediation before court (subject to exemption criteria), the clerk of the court should ensure that in every case, magistrates are informed of the requirements set out in Practice Direction 3A (paying particular attention to sub-paragraph 4.1). It should be checked whether FM1 accompanied the application form. If no FM1 form was received, at the First Hearing and Dispute Resolution Appointment (FHDRA), the circumstances should be considered, and if no exemption criteria is met, the parents should be referred back to mediation before court proceedings continue;

  • At County Court level, the Court Administration department should check if an FM1 form was included. If not, a follow up form should be sent out to the applicant asking why there was an omission. Depending on the reply, the court then has the option of referring the matter to mediation before the FHDRA (which would reduce court time);

  •  The C100 form should be redesigned to include a section explaining the requirement for mediation, and setting out the exemption criteria. The applicant should have a box to tick, if circumstances make the case inappropriate for mediation. If this is found not to be so, the court has the option of awarding costs against the applicant, if the applicant unreasonably failed to attempt mediation before applying to court. If the respondent is unwilling to attend, then this should be recorded on the FM1 form.