For argument’s sake
25 October 2004
One of the main objectives of Lord Woolf’s reform of civil procedure in 1998 was to encourage parties to settle disputes without litigation. The Court of Appeal emphasised in two recent cases that courts have a duty to encourage mediation. However, the appeal judges ruled against courts having the power to order mediation, pointing out that compulsory mediation would be likely to fall foul of Article 6 of the European Convention on Human Rights by preventing right of access to the courts. Compulsory mediation is widely seen as wrong in principle and likely to add to costs and delays. The Court of Appeal also held that litigants who win in court after refusing to mediate should only be penalised in terms of cost recovery in exceptional circumstances.
Appropriate use of mediation that recognises its limits, as well as its benefits, is preferable to compulsory mediation. Alternative dispute resolution (ADR) is voluntary in England and Wales and is used in a small proportion of civil and commercial disputes, yet it is making headway. Last year, the Centre for Effective Dispute Resolution (Cedr), the UK’s leading commercial mediation provider, conducted mediations involving parties from 20 different countries and hosted international delegations of senior judges from 29 countries. Use of Cedr’s mediation services increased by 35 per cent. With English increasingly used as the language of international communication, London has a growing reputation as an international centre for commercial mediation.
Family mediation has developed over a longer period and is more widely used. The first family mediation service in the UK – Bristol Family Mediation – celebrates its 25th anniversary this year as a full-time service. The benefits of helping parents to settle disputes over their children are particularly marked. Part III of the Family Law Act 1996 introduced a requirement for solicitors to refer clients to a recognised family mediator, to consider mediation before public funding can be obtained for family proceedings. Recognised family mediators, including many lawyer mediators, provide information, assess eligibility for publicly funded mediation and help clients to consider taking part in mediation. Clients attend pre-mediation information meetings separately or together, free of charge. If mediation is suitable and accepted by both parties, mediation is free of charge for those eligible, with no statutory charge and with the benefit of legal advice from their lawyers under the Help with Mediation scheme.
Mediators in franchised family mediation services must have recognised training in family mediation, continuing training and supervision and must have passed the Legal Services Commission Assessment of Competence in Family Mediation. Family mediation is regulated in England and Wales under national standards, unlike most other European countries.
Oddly, the Green Paper ‘Parental Separation: Children’s Needs and Parents’ Responsibilities’ (July 2004) makes virtually no mention of referrals to independent family mediation at the pre-court stage, although publicly funded family mediations have increased from 406 in 1997-98 to 14,290 in 2003-04.
Obviously, mediation is not always suitable and may not produce agreement, but it encourages co-operation, whereas parents who go to court are more likely to battle as spouses than negotiate as parents.
Researchers have found that applications for court orders appear to exacerbate rather than resolve parental disputes. Sensational stunts by publicity-seeking fathers distract attention from the many thousands of separated parents who are able to reach agreements over their children. Many do so without involving professionals at all, but when relationships break down, communication often breaks down too and early referral to mediation can restore communication and help separating couples to focus on their children’s needs and feelings.
The Green Paper proposes that parents with intractable disputes should attend brief in-court conciliation staffed by Children and Family Court Advisory and Support Service (Cafcass) conciliators. However, Cafcass is overloaded and has a backlog of reports. Further resources are needed, as the Family Resolutions Pilot Project is likely to demonstrate. Better use could be made of pre-mediation intake assessments if a statement of reasons why mediation was found unsuitable could be sent to solicitors, with clients’ consent, and included in applications to the court.
The culture of dispute settlement is spreading across Europe with the development of new approaches, including mediation and collaborative law. At the Council of Europe’s conference on family mediation in Strasbourg in September 1998, Lord Irvine, then Lord Chancellor, stated: “Individuals and companies are increasingly willing to pay for the services of mediators and arbitrators because they believe that they can achieve a more satisfactory resolution to their dispute than they are likely to secure through the full process of the court. And for parties who have, or want to have, ongoing relationships, mediation is of particular value. Those who are able to offer competent and successful ADR and mediation services will find they are part of a burgeoning and profitable new profession. ADR is, I believe, entirely consistent with the principle of the better delivery of justice.”
Different ethnic groups may need different kinds of mediation. On the other hand, the expansion of the EU to 25 member states and the mobility of individuals and families across state boundaries increases the need for cross-cultural mediation and international standards in training and practice. The EU has published a European Code of Conduct for mediation and an EU directive on mediation is expected soon. Perhaps the greatest hope for the future lies in the success of peer group mediation in schools. Children enjoy learning mediation skills in school-based programmes. Let us hope that the next generation will see mediation as the normal first step to take in resolving conflicts.
Lisa Parkinson is a family mediator and a member of the Standards Committee, European Forum on Family Mediation