Written evidence from Professor Anne Barlow (Professor of Family Law and Policy) and Dr Jan Ewing, (Research Fellow), University of Exeter Law School

Summary

Given that national statistics clearly indicate that in the private family law context, there has been an unintended yet significant increase in litigants in person and a reduction in family mediation starts since LASPO was introduced, this response draws on our empirical research findings to indicate that legal aid needs to be used to support appropriate dispute resolution, not just mediation or court. It suggests policy must recognise that whilst most disputes are capable of being settled out of court (and indeed most are), not all are in this category. While mediation is a good family justice dispute resolution process for many, it is less well known than legal advice, cannot on its own provide personal or partisan support to each individual party at a time when their life is in crisis, and cannot advise on the law to enable both parties to know where they stand. In addition, some people e.g. those with mental health issues, or where there is an abusive relationship including controlling and coercive behaviours (often difficult to identify in mediation but which distort the power relations during the process), are generally not suited to family mediation. This makes self-representation in court the only option for those unable to afford legal advice where the other party is unwilling or unsuited to mediation (other than in the proven domestic violence context). It takes two relatively rational people with relatively equal emotional and financial power to agree to mediate and then mediate successfully. Greater support through legal aid for ‘hybrid’ out of court dispute resolution, including the availability of counselling, lawyer supported mediation to sense-check mediated agreements and assist in finalising financial mediated agreements for court approval (consent orders) as well as increased use of child inclusive mediation, where this improves the chances of successful mediation on children issues, should be seriously considered alongside much improved online information and support for parties, appropriate to their situation.

Introduction

We are socio-legal academics who (with colleagues Professor Rosemary Hunter, Law, University of Kent and Dr Janet Smithson, Psychology, University of Exeter) have undertaken research funded by the Economic and Social Research Council which captured some of the effects nationally of the withdrawal of Legal Aid from private family law matters in 2013. For these purposes, we refer to our findings in two online reports, hyperlinked here. Our studies, Mapping Paths to Family Justice (2011-2014) (Mapping) and later Creating Paths to Family Justice (2015-2019) (Creating) looked first (in Mapping) at which cases and parties are suitable for which dispute resolution processes. It did this by charting people’s awareness and experiences of out of court dispute resolution in two nationally representative samples (n= 3700; n=2974) which were followed up with in-depth interviews with parties who had experienced one or more out of court dispute resolution process (n=96) between 1996 and 2011. A variety of family practitioners (mediators and lawyers) (n=40) were also interviewed and we also recorded solicitor client interviews, mediations and collaborative law meetings as part of the project. During the study, following the Family Justice Review in 2011, family mediation became seen by policy makers as the best way to resolve family disputes. This was taken forward through the withdrawal of legal aid from most private family law disputes but was retained for family mediation. In our later study, Creating, we worked with agencies across the family policy and practice sectors (including Family Mediation Council, Relate, The Law Society, Family Mediators’ Association, Resolution, OnePlusOne, Cafcass, Ministry of Justice, Department for Work and Pensions). Here we brought experts together to consider how we could implement the findings from Mapping to improve people’s access to and experience of mediation and in particular to support them to and through the process when many people no longer had any choice other than to attempt mediation. In particular we considered how people react to and absorb online information; how practitioners could improve practice for offline mediation; trialled extending good practice to online family mediation, and also followed how people accessed family justice post-LASPO.  This included using online information which they found difficult to navigate and also turning to online (gendered) support networks such as Mumsnet or Families Need Fathers. Finally, Barlow and Ewing evaluated a DWP-funded trial Mediation in Mind (hyperlinked) where families and children in ‘high conflict’ disputes were all supported through mediation with counselling and child inclusive mediation, aiming to reduce conflict and improve mediation uptake and successful outcomes in more difficult cases.

Evidence on how LASPO has impacted access to justice and views on the post-implementation review

It is well known that LASPO had the unintended consequence of significantly reducing family mediation starts and increasing the number of cases issued in court, in total and in terms of those where one or both parties were unrepresented, putting enormous strain on the family courts. Whilst the changes to the domestic violence exception are welcome, there are many other improvements needed.

Recommendation 1

Based on our findings in the Mapping study, we suggest providing funding for legal advice before mediation is likely to increase the uptake and the proportion of cases that settle in mediation -

1.1  Allowing access to legal advice alongside mediation would reduce the numbers going to court, where our study found family lawyers were the main referral mechanism to mediation, can be beneficial. 

1.2  The provision of legal advice both equipped parties with the confidence to engage in mediation and empowered them in the mediation process. Parties who both ‘knew their rights’ were more likely to settle in mediation.

Evidence from Mapping study (all research participants’ names are anonymised)

Tracy did not feel able to mediate until she had secured robust legal advice and support but that the ‘information on my rights’ that she received from her lawyer had ‘empowered’ her to ‘stand on my own feet’ in mediation.

 

Esther was thankful that her lawyer was able to advise her on a reasonable financial settlement to inform the mediation process: ‘I think that’s what I’d been waiting for all along.’

 

Andy, who had a very positive experience of mediation, felt the need for legal advice before committing to the mediation process:I went to a solicitor because I wasn’t sure about the whole mediation process so I wanted to know my rights in the whole situation, so I went to see a solicitor before I had my individual mediation appointmentI got some advice from a solicitor before I went and yeah, that was fine.

 

Recommendation 2

Eligibility for legal aid for legal advice and to pursue a court application should be extended to those with mental health conditions that render them unable to mediate with their ex-partner on an equal footing or in a rational way.

 

2.1  Attending mediation in cases involving significant power imbalances short of domestic violence (and therefore not eligible for court legal aid) led to outcomes that were unjust.

2.2 Exceptional case funding could be extended for legal advice and if necessary representation where one party has mental health issues.

Evidence from Mapping

Monica had mental health issues. She had been the primary carer of the children prior to separation yet following a mediation session in which her husband was allowed to denigrate her unchecked by the mediator, she agreed with her husband directly, equal shared care of the children. When interviewed two years after mediation, she remained in rented accommodation and her ex-husband was in the substantial, privately-owned former matrimonial home:

What I felt was that it was not a balanced situation. I was mentally ill, I was poorer,

you know. I was the one who had to give up my job, give up my house [when she left the relationship], and yet it was treated as if there were no power imbalances between us, as if we were both on equal footing, and we weren’t.

 

Recommendation 3

Better access to good quality legal information and availability of counselling or other therapeutic interventions should be a referral option funded by legal aid to enable parties to get to a point of emotional readiness and roughly equal practical preparedness from which they are able to engage in mediation successfully.

 

3.1  Lack of emotional readiness to mediate was a major reason emerging from our research for rejecting mediation. It was also a reason why some mediations broke down without agreement or with agreements that were unfair since they had been driven by feelings of guilt. Mediating before they were emotionally ready to engage in the process was not only unproductive but also, on many occasions, deeply distressing for the emotionally unready party.

3.2  Lack of practical preparedness to mediate also leads to parties rejecting mediation or the process breaking down. A package of legal information and/or counselling for disadvantaged parents aids the practical preparedness of parents to mediate and the likelihood of settling in mediation. It also made them less inclined to issue a court application.

 

Evidence from Mapping

Iris tried mediation, but she recognised retrospectively that she was not in the right emotional frame to cope with this difficult process. She identified a lack of support where one or both parties are not emotionally ready, a not uncommon state. As she explains, ‘At the initial part of the breakdown, you know, there was a lot of emotions going. There was a lot of things that are going on at that time. I don’t feel there’s enough support, enough of the right…or enough of an alternative support’.

 

Charlotte and Nora on the other hand felt that the clear explanation of the mediation process had helped them to engage in the process and reach an agreed outcome. As Nora put it:

 

[The mediator] checked sort of every step of the way that we were happy with it, you know, and what the limitations were, just to make sure that we had no false expectations, and very much emphasised that it was to help us sort things out.

 

 

Evidence from Mediation in Mind

Unquestionably, with 91% of those interviewed agreeing, counselling prior to mediation was successful in achieving the aim of ensuring that parents felt more emotionally ready to mediate. Mandy reflected the views of many. She described how getting things off her chest in counselling had reduced her anger and ensured that she and her former partner were able:

 

To get straight to the point on things when it was in the mediation session, instead of having to keep repeating stuff in my own head… [we] could just talk about the simple steps of what needs to be done from now.

 

Counselling had, Melanie explained, shown that ‘there was an alternative way of thinking things and there was a calmer way of thinking things.’ Some, including Lizzie, attributed the swift conclusion reached in mediation to the counselling: ‘I think we probably wouldn’t have got an outcome at the first [mediation session] because I think I would have been too pent up about it.’ Parents who had not taken up the offer but whose ex-partner had felt that it had assisted the mediation process: ‘I think just my wife’s acceptance that there was blame on both sides helped us to free up negotiations’ (Dan).

 

Most parents (82%) felt more ready to mediate following the provision of legal information in a meeting with a solicitor. For some, the meeting met a need for information at a point when they were ‘information hungry’ (Sophie). Having ‘the blanks filled in for you by people who know this process inside out’ (Dan) helped parents to feel more practically prepared to mediate. For others, it helped them to be more emotionally prepared to mediate. Theresa spoke of it giving her the confidence to ‘keep pushing forward.’ Most parents (88%) felt less inclined to resolve matters through court proceedings following the legal information meeting. Barry found the explanation of the costs and timeframes of court proceedings a good ‘reality check’ which made him determined not to go down that route.

 

Recommendation 4

Better access to information and better support through the separation process in the absence of or in addition to access to legal advice.

4.1  Providing disadvantaged separated parents with triage and signposting, legal information, and counselling leads to higher conversion rate from Mediation Information and Assessment Meeting (MIAM) to mediation starts; higher settlement rates and reduced recourse to court.

4.2  Consideration should be given to funding a holistic package of support for separating parents. Quite apart from the emotional benefit to parents, the evidence suggests that this could reduce the burden on the family courts.

Evidence from Mediation in Mind

Providing disadvantaged separated parents who with triage and signposting, legal information, and counselling leads to:

Recommendation 5

Providing young people with counselling and the opportunity to participate in mediation on parental separation helps them to come to terms with the separation and can help to reduce levels of parental conflict.

 

5.1              Involving the children aids parents to resolve matters outside of court. Therefore serious consideration should be given to extending publicly-funded child-inclusive mediation to make this more attractive to mediators.

5.2              This should also include possible access to funding for counselling in high conflict children disputes to prevent children developing mental health issues later and to support them through the mediation process where appropriate.

Evidence from Mapping

Sheila had tried to negotiate via solicitors, mediate and use collaborative law but the processes broke down, partly because she and her former husband were unable to agree what was best for the children and had different versions of what they thought the children wanted. However, when the children were consulted, the parents were able to reach agreement without the necessity of a court application.

Ernest and his former partner were unable to agree which secondary school their daughter should attend but when the child was given the opportunity to speak to a mediator, and express a preference for the school that her mother favoured, Ernest was able to accept that these were his childs genuine wishes and agreement was reached without the need for a court application.

Evidence from Mediation in Mind

For the three young people who engaged in child-inclusive mediation, the process had been empowering. All three reported that it had helped them to cope better with their parents’ separation. The act of speaking to a third party was cathartic for these young people. Reflecting the sentiments of her siblings, Rosie felt that it had helped: Because I said what I wanted to say and I don't have to say it again and then that means that I have got it out of my head in saying it and now I don't really need to worry about it.

Evidence from Creating and the ongoing HeaRT project

The strong message from the focus groups with the Family Justice Young People’s Board (FJYPB), in both Creating and our more recent ongoing Wellcome-funded research on Healthy Relationship Transistions (HeaRT) is that children and young people wish to be heard in decision-making following parental separation.

If parental reluctance to involve the child can be overcome then this often leads to a child-centric outcome and enables parents to reach agreement without a court application. As Trevor put it:

Initially I was dead against the idea [of child-inclusive mediation but]… after having spoken to the mediator, on a couple of occasions I reluctantly agreed that, yeah we should do it… that [my child’s] voice should be heard… I have got to say [the mediator] was excellent because once she had said to me, “it's better for all parties involved and can really shorten the length of time that this is going to take” and I thought okay, yeah, fair enough… [now] I do definitely without a doubt [think that]… you have to involve children because you actually get a sense then of what they feel… you have got the child’s voice…

From the young people’s perspective, child-inclusive mediation was a hugely supportive process. As Anna told us: [CIM gives young people] … a voice… they are being respected… it's actually quite cathartic for children to be able to kind of explain what's going on to someone and someone to listen to them. 

Evidence from Mediation in Mind

For the five young people who engaged in counselling, the process had been therapeutic. All reported that it had helped them to cope better with their parents’ separation. The counsellor’s empathy helped the young people to open up to her which, for some, had led to greater honesty and openness in the parent/child relationship. As with the child-inclusive mediation, the counselling had been cathartic. Jack was relieved to be able ‘to like let my feelings leave my chest, not feel like caught up and rather let it go.’

Comments on other questions – technology and effect of LASPO on professions

The most vulnerable will be even more marginalised by increased use of technology unless assisted.

There is a crisis among legal aid family lawyers and family mediators in terms of the risk to losing their skills and expertise where their work is loss making. Online mediation is one solution but our work with Relate looking at the Dutch Rechtwijzer model shows it is not a straightforward solution.

References

Barlow et al, Mapping Paths to Family Justice: Briefing Paper and Report on Key Findings, University of Exeter, 2014

Barlow et al, Creating Paths to Family Justice: Briefing Paper and Report on Key Findings, University of Exeter, 2017.

Barlow and Ewing. Evaluation of Mediation in Mind: Report to DWP, University of Exeter, 2020.

 

 


[1] Williams, T. (2019). ‘What could a public health approach to family justice look like?’ Nuffield Family Justice Observatory for England & Wales