Our Family Courts are Overcrowded!!!!
Wednesday, 27th July 2011
The Government this year introduced changes to keep more cases out of court and give more “control” to separating couples. The use of Mediation has been increasingly encouraged over the last ten years for separating couples to resolve their financial settlement and children issues.
6th April 2011 saw the introduction of the Family Procedure Rules 2010 and the new pre-action protocol, which amongst other things, requires all disputing couples to attend a Mediation Information and Assessment Meeting (MIAM) prior to commencing any court proceedings, be their dispute in relation to children or finances or both.
It has always been the case that a court application should be the last resort. Particularly when it comes to matters concerning children. The very nature of a court application inevitably results in a complete breakdown of communication between parents which is not good for the child(ren) caught in the middle.
What does this actually mean?
The Minstry of Justice are keen to increase public awareness of alternative methods of resolving their disputes without resorting to the courts, and how those alternative methods can help better support individuals through their divorce or separation.
It has long been the case that anyone wishing to apply for public funding (formally known as legal aid) was required to attend prior to being able to apply for public funding. The protocol places everyone on a level playing field between publicly and privately funded party’s.
A MIAM provides party’s with information about mediation and how it can help them in managing and arranging their affairs following the breakdown of their relationship and maintain a healthier, less confrontational relationship with their ex-partner, particularly were there are children involved. It can be attended individually or jointly depending on your circumstances. At that meeting it will be determined whether mediation is appropriate to assist you in your circumstances.
What is mediation?
Family mediation is the process by which an independent third party assists a separating couple to reach agreement and make arrangements surrounding their separation. It enables couples to explores the issues and concerns between them and consider options to resolve them.
Mediation can deal with all issues, from the separation itself and how and when that is going to occur, to issues surrounding children of the relationship, finances and property.
Family Mediators must comply with the Code of Practice and are regulated by the Family Mediation Council.
Mediation can be an “ongoing” process in that it can assist at all stages of separation, particularly with children. As Children grow and their needs change, mediation can assist parties to reach new agreements to reflect these changes. Thus mediation is not a process which assists only at the point of separation but can be revisited in the future.
There are four principles which are fundamental to family mediation, they are that it is voluntary, impartial, confidential and that the decision making rests with the clients.
Mediation is a voluntary process for both Clients and the mediator(s). Clients are free to decide whether to enter into the mediation process. There may be an exception to this in that there are occasions when a couple is going through the legal process and the courts will refer them to mediation. In those circumstances it could be said that clients are not then free to decide to attend mediation. However, it does remain the case that Clients cannot be “forced” to engage in the mediation process. They can only be encouraged to attend.
Mediation remains voluntary throughout the process. So, having entered into the mediation process, Clients can end it at any time.
Mediators are also free to choose whether to act as mediator for a particular couple and once mediation has commenced, they can choose whether to continue to act as mediator between them.
Mediators are able to end the process at any time if they do not feel they are the appropriate person to assist. In those circumstances they can refer the couple to another mediator or other professional person as is appropriate.
The mediator should also cease mediation if they feel mediation is no longer suitable for a couple, for example if it becomes apparent there are domestic violence issues or one Client is clearly not freely and fully participating. In those circumstances the issues should be raised with the Client(s) and the appropriate action taken, often this will require other professional services becoming involved.
Mediators are impartial. They do not act for one person on the other. Their role is to assist both parties equally, remain neutral and not to make any judgement or express any opinion as to who may be right or wrong or take sides. They are not there to provide advice to either party but to facilitate discussion between the couple.
Where Clients express emotion, the mediator should not show agreement or show compassion with that person but should mutualise those emotions by stating that both parties will be going through different emotions and that it is only normal to go through such emotions. They should also aim to prevent threatening, manipulative and intimidating behaviour.
Mediators are not Counsellors or legal advisors. If a mediators feels some form of Counselling may assist a party then they can provide information as to what other services may be of assistance to both parties. The mediator should not suggest one party in particular may benefit from some other form of assistance such as Counselling but should be impartial and simply suggest that there may be other services which both parties could benefit from in helping them move forward with their separate lives.
If legal advice is required the mediator should suggest both parties seek their own independent legal advice. Mediators can provide legal and financial information but this must be on a mutual, impartial basis. Both parties should be given the same information.
Any correspondence from one party to the mediator is open to the other party. It must be shared openly by the mediator between the parties to ensure impartiality remains at all times. What will not be shared however are any contact details, addresses, telephone numbers etc, which a party wishes to remain confidential and any correspondence will remain confidential from any outside sources, such as solicitors, unless both parties wish the information to be shared.
Mediation is confidential. All discussions and correspondence confidential. Discussions and correspondence are not shared with solicitors or the courts or any other outside sources, unless both parties agree. Mediators cannot be called upon to give evidence as to the discussions, correspondence or mediators notes or recording produced by the mediator, in any court proceedings, unless both parties agree otherwise or an overriding obligation is imposed on the mediator by law.
Because mediation is confidential, Clients can be more open and can discuss and reach decisions on any number of issues, which through the usual legal process may not be open to them, such as issues surrounding the extended family, new partners etc, issues which are not generally addresses in the litigation process of separation.
There are two exceptions to the principle of confidentiality, the first being harm to another person, in particular to children.
Where mediators become aware of any potential or existing harm to any other person, particularly children, then mediators should err on the side of caution and involve the necessary authorities and Clients must be aware of this from the outset.
It is often the case in highly emotive cases that one parent may raise a concern about the other parent. Mediators must be aware of this and explore any allegations with the Clients to establish the nature of the concern and the sincerity of any concern. Mediators should however err on the side of caution and if there is any doubt the concerns should be reported to the relevant authorities.
If it is a concern being raised by both parents about another individual then it would be appropriate to discuss reporting their concerns to the relevant authorities themselves.
The second exception to confidentiality is the disclosure of financial information. Any financial information disclosed in mediation, is disclosed on an open basis. Each party’s information is provided to the other and is made available to the legal representatives of the parties, for use in advising Clients on any proposed financial settlement and for use in any ancillary relief proceedings, should mediation be unsuccessful.
The Mediator will provide an open financial of each party to the solicitors.
Family mediation is distinguished from other types of dispute resolution such as arbitration, conciliation and litigation amongst others, by its decision making process. In family mediation it is the Clients who make the choices and decisions. In other forms of alternative dispute resolution the decision may rest with a third party, not the clients.
The process of mediation is one which allows couples to make their own decisions about their separation. As stated above, mediation is a process which facilitates discussion between the parties. Mediators do not give advice as to what is in their best interest. Mediators help parties to consider their options and look at what will work for them and what they can live with in their separate lives. Mediators can make suggestions for Clients to consider and discuss but the ultimate decision is that of the Clients.
This is fundamentally why mediation is far more successful in maintaining an ongoing relationship between separated parties, particularly where children are concerned, than the traditional litigation approach. Mediation is far less confrontational and inflammatory than traditional proceedings.
You can contact Chris Myles, Head of the Family Law team, by telephoning 01904 624185. Chris is based at our York office and is a qualified family mediator with many years experience.
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