Tuesday, October 19, 2010

Singing into the wind

There has certainly been a chorus of warnings about possible changes to the family justice system, in particular the introduction of compulsory mediation, in the spending review and/or the Family Justice Review.

Last Thursday the Law Society Gazette told us that: "Family solicitors have warned that government plans to divert private law disputes over children away from the courts and towards mediation may not lead to child-focused outcomes." Jenny Beck, head of the family team at London firm TV Edwards, is quoted as saying: "Mediation is a voluntary process through which parties can try to reach agreement in relation to arrangements for children. While it is hoped that the adults present focus on prioritising children, I am aware of cases where this sadly doesn’t happen ... If parents can together reach a child-centred solution, then mediation is far preferable to court, but if they cannot, there needs to be state intervention through the courts".

Yesterday Resolution issued a news release which "called for a return to evidence based policymaking on family law and warned against simplistic solutions to the complexities of family breakdown". Chair of the association David Allison is quoted as saying: "Our members recognise that each family needs a process that is right for them – that can be mediation, but might also be collaborative law, parent information and in some cases court. We are deeply concerned that in its hurry to bring about cost-saving reforms, the Government is going to narrow the gateway to court to such an extent that those families who need it cannot access it."

Lucy Reed of Pink Tape has added her voice. She points out that if compulsory mediation is announced this week in advance of the Family Justice Review, then that will rather tend to undermine the purpose and credibility of the Review. She goes on: "You can say that parties must attend mediation, but I doubt that it is realistic to suppose we could enforce that attendance. And you also can’t force parties to agree. If you want to force parties to adhere to a particular arrangement you need a court. Some cases will always need court assistance."

The UK Human Rights Blog takes a similar view: "Mediation has been presented as a cure-all before, notably in the 1999 civil justice reforms. But compulsory pre-court mediation needs willing parties, or it will be reduced to parties spending more money going through the motions in order that they can get into court."

Is anyone in government listening? I doubt it. In fact, it seems clear that the decision has already been made. The temptation to introduce what David Allison calls 'a quick fix solution to the problems facing the family justice system', which will apparently simultaneously achieve substantial financial savings for the Government has been too great. In the long run, however, it may only store up problems for the future. As Lucy Reed warns, without the court parents may "simply carry on their conflict outside of any managed or moderated environment", which may lead to children suffering emotional harm which "will go unchecked until it emerges in behavioural difficulties or underperformance at school or is played out in difficulties with relationships in adult life".

On the other hand, all these voices of doom may be proved wrong. Perhaps compulsory mediation will be the great answer to everything. One thing seems certain: that that proposition is going to be put to the test.

2 comments:

  1. But the Conservatives already did this research in the mid 90s and abandoned it when it was obvious that it would be no cheaper than solicitors.

    It didn't solve any problems which were not soluble by the solicitors, and when it failed it cost twice as much because the whole rigmarole had to be gone through twice.

    It didn't work then and it won't work now for all the reasons they already have in the library. Anyone who thinks about it for half an hour can predict what will happen, and they don't have to predict it because we have done the experiment.

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  2. Shared parenting orders with presumption of shared time with each parent at 50 percent as a starting point with the court would be a good starting point to prevent people going to Court to give the minimum contact that is currently given as 'generous' by the anachronistic Judges. That needs to change, the rest I am afraid I agree with Woman on a Raft. Still if this starting point can be introduced, then there would be value in mediation. Not if both sides know that the PWC will always win in Court as they do currently. Such as the Payne (international) case and my case and many others where the nrp ends up with little contact from court where no agreement has been possible with an obstructive pwc.

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