Couples separating or divorcing face a myriad of different financial and practical problems: arrangements for their children, the appropriate division of their assets, suitable housing, sorting out income resources, to name the most obvious. Their legal position in England and Wales depends on the legal status of their relationship, and for the growing number of international couples in this jurisdiction there are complex technical questions of jurisdiction. For some, there are religious and cultural issues to address.
The traditional method of addressing these problems still holds good for many couples—they each consult solicitors and matters are resolved through lawyer led negotiation or court proceedings and most commonly a mixture of the two. However, since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and effectively wiped out legal aid for family law (save for care proceedings and in a limited way for domestic violence cases) the court service has visibly struggled with the vast increase in litigants in person. The resulting bureaucratic chaos and increasing delays in the court system have meant that family law specialists are turning to alternative means of resolving matters.
ADR is not new in family law. In court conciliation (as we then called it) was pioneered for children’s issues in the early 1980s in what is now the Central London Family Court, and all issues mediation was available to separating couples by 1988 when the Family Mediators Association had trained the first group of solicitors and family therapists as mediators. In 2003, collaborative law arrived from the USA, and was enthusiastically embraced by a number of family law specialists. In February 2012, an arbitration scheme was started by the newly formed Institute of Family Law Arbitrators.
An additional practice that has grown in popularity among many practitioners, where the parties have the financial resources, is the use of a private financial dispute resolution appointment (FDR), the FDR being a key part of financial remedy proceedings in a divorce. This avoids waiting for a court FDR, and enables the parties to choose the lawyer to conduct the FDR, generally an experienced QC and sometimes a retired High Court judge.
The reforms under LASPO recognised the cost effectiveness of mediation, by making legal aid available, although income and capital limits for eligibility mean many couples, particularly in areas where house prices are high, are not eligible. Court rules now generally require attendance at a mediation information and assessment meeting (MIAM) before initiating court actions regarding children or financial arrangements on divorce or civil partnership dissolution. Mediators have thus become gatekeepers to the court system.
There is no legal aid for arbitration or for collaborative law. The rates of pay available under legal aid discourage many lawyer mediators from participating in the legally aided mediation system, the effect of which is not yet known. The complexities of the law on the breakdown of relationships mean that there are inevitably question marks as to the wisdom of leaving couples to face these issues either on their own or with the sole help of a non-lawyer mediator.
What does each of these possibilities have to offer?
This is the newest form of alternative dispute resolution (ADR), governed by the Institute of Family Law Arbitrators. At present, it is only available for financial cases, not children cases. The great benefits of arbitration are speed, certainty and privacy—which last can be very important for some couples, given the drive by a number of judges for greater “transparency” so that hearings take place in open court with unwanted media attention.
Arbitration can be used to settle a particular aspect of a dispute or the entirety of the financial issues the couple are facing. The arbitrator can deal with matters on the papers or at an arbitration hearing. Essentially, the parties enter into an agreement under which they appoint a professionally qualified arbitrator to resolve the dispute and make an award. Once appointed, an arbitrator will make directions as to how the case proceeds, provide a timetable for submission of evidence and fix a date for any arbitration hearing if this is requested.
By signing up to the agreement the parties agree to abide by the arbitrator’s award, and, save in limited circumstances, the court will uphold the award. It may result in rough justice (as can the court system), but does provide a speedy, cost effective outcome, and for some clients the added benefit of confidentiality is key.
This form of ADR has the couple and their lawyers signing a “participation agreement” that commits all of them to avoid going to court save for the purpose of obtaining a divorce and the court’s approval to the agreements they have reached within the collaborative process. The process means that the parties and their lawyers work together to the extent that all meetings and telephone calls involve both clients and their lawyers. Financial and other experts can be appointed to provide advice on specific issues, and a number of financial and pension advisers have been specifically trained to participate in collaborative law negotiations.
The collaborative law process can be faster than the court process, and as the participants control the pace, negotiations can go at a speed that suits both parties—assuming they can agree this.
A core element of the participation agreement is the avoidance of the court process, to the extent where the breakdown of negotiations means the clients would have to instruct new lawyers. The proponents of collaborative law believe this is one of its strengths: it means the couple face such a serious disadvantage if negotiations break down that they find a solution. However, some lawyers and their clients find a way round this by agreeing on a “collaborative lite” process, without a formal participation agreement, so that the same solicitors can continue to represent their clients if court proceedings are started.
Collaborative law depends on a great deal of trust and empathy between the parties, and both clients must be able to articulate what they want to achieve. It is therefore not appropriate in every case. Its critics say that the reliance on four way meetings, with two sets of professional fees, adds to the cost.
The government is keen on making mediation the centrepiece of the new family justice system. This is of course motivated by the fact that it generally involves one professional, not two, and is therefore seen as a cost effective way of resolving family disputes.
Mediation does have much value as a flexible means of dispute resolution, allowing parties to reach mutually acceptable decisions in a voluntary and consensual manner and in a confidential setting. Mediators can help the parties to establish a better dialogue, consider options, and test out possible solutions. It can enable more creative, tailor-made solutions than the court process allows. Mediation can take place before court proceedings are contemplated or at any time during them.
At its worst, mediation can mean a hastily achieved solution at a time when the parties are at their most vulnerable without adequate consideration of the longer term consequences, and without either party having recourse to legal advice. The cuts in legal aid mean that each party would have to pay for their own legal advice, and many struggle to find the resources to do this. Although lawyer mediators usually commit to telling the parties when they are considering a settlement that falls outside the ambit of what a court might decide, this is no substitute for each party having access to legal advice before starting mediation and as needed during it.
The classic model of family mediation means that the parties sit together in the same room as the mediator, and while they are encouraged to seek advice from their lawyers in between mediation sessions, the lawyers are not generally present. There are usually four-six mediation sessions of up to two hours each. That model is not always appropriate, for example if there are very complex financial structures, and so some mediators have been trained to offer lawyer assisted mediation, which follows commercial mediation models. One or more days are set aside for the mediation, and the mediator talks to each party and his/her legal team separately, understanding each party’s aims and concerns and exploring options. This can be highly effective, although clearly more expensive.
Although not strictly a form of ADR, the private FDR model is important. It could be described as a way of privatising a key part of the court process in a financial remedy application. Generally speaking, the possibility of a private FDR is canvassed between the parties’ lawyers before the first directions appointment. There is of course a cost implication because of the fee payable to the lawyer who conducts the private FDR. The decision to arrange a private FDR is made known to the judge at the first appointment, and the same rules apply to it as do to a court arranged FDR—it is a without prejudice appointment and if agreement is not reached, the matter proceeds to trial.
To read the article in New Law Journal click here.