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NFM response to divorce reform consultation

On this page, you can find the December 2018 response from National Family Mediation to the government’s consultation on reform of the legal requirements of divorce.

 

Reform of the legal requirements of divorce: Consultation response from National Family Mediation

 

Introduction

As a member of the Family Mediation Council, we have also contributed to that body’s submission to the consultation process, but are pleased to provide this document, which was written following consultation with members and affiliates of NFM, the largest provider of family mediation in England and Wales.

Our response to the consultation is naturally geared towards the impact of current and future divorce laws upon our professional practice.

 

Summary

Facing a divorce is one of the biggest crisis points in anyone’s life, so it is particularly important that the process is as simple and straightforward as possible.

Therefore we fully agree with the government that reform of the divorce laws is badly needed and, we would contend, long overdue.

Current divorce laws have a very negative effect on the culture of divorce, and in our view Ministers are right to focus reform efforts on ensuring a less confrontational process.

 

Finding fault

Current divorce laws which mean someone has to be proved ‘at fault’ – even when a couple agrees on the need to separate – creates a bidding war which then often escalates to a full-blown courtroom battle brimming with resentment and anger, to the detriment of the future of everyone in the family.

The current processes leave divorce much too tangled up in arcane legal processes which have acquired a mystical quality that serves to confuse and defeat those who are undergoing the biggest crisis of their lives.

The laws fuel conflict and only serve to promote protracted litigation, costing families a fortune.

The current legal need to prove a spouse’s ‘unreasonable behaviour’ fuels bad feeling between a couple. In our experience very often we find that couples who, for whatever reason, have decided to separate just want to get on with it, and make a fresh start.

 

Reducing conflict, and helping couples ‘move on’

We concede that mediation in its own right plays a relatively small role in the overall divorce process, although it is worth noting that family mediators sometimes discuss and agree with couples the grounds for divorce. Depending on their shape, government reforms may in fact even remove this mediator role, by removing an area of potential conflict, and in our view this would be most welcome.

Removing the concept of ‘blame’ from the divorce process must, in our view, form a fundamental cornerstone of any law reform, as it would considerably reduce the conflict between parties.

From a professional perspective, we believe that removal of blame will improve the willingness of people to take part in mediation, as they will be more emotionally ready to do so. This would increase the numbers of divorcing couples using the process. So a by-product of divorce law reform would be a boost for government objectives of improving mediation take-up.

We would welcome the provision for notice to be given jointly by both parties to the marriage, not only as we believe this could considerably reduce conflict, but also because it could set the scene for further joint applications (for example in relation to child arrangements and financial settlements). It would alter the culture of divorce in the UK and promote shared responsibility to settle the issues of a broken marriage together. In turn this could allow for rules to require both parties to be required to attend MIAMs that would allow people to come to mediation and put in place suitable arrangements for each other, and especially their children, following the end of their marriage

Determining a minimum period or timescale that would be most appropriate to reduce family conflict would be difficult to pinpoint, not least because each family has a unique set of circumstances and there are different triggers for action in each case. However, retaining the pause between the decree nisi and decree absolute could be used more effectively, and the decree absolute should only be granted when satisfactory child and financial arrangements are put in place.

 

Modernising divorce processes and language

Elsewhere we have warmly welcomed the innovative digital work being undertaken by HM Courts and Tribunal Service in developing online tools to help people manage various elements of divorce. Therefore we request that, in progressing reform, Ministers work with Ministry of Justice digital colleagues to ensure future processes are as streamlined as possible. Bringing these processes online makes them much more accessible which, by definition, can provide better access to justice and swifter resolution to seemingly-complicated procedures.

We would also ask the government to address issues surrounding the language currently used in the divorce process. The last thing people need at their time of crisis is to have to get to grips with a new set of legal jargon – words like ‘affidavit’. ‘plaintiff’ and ‘respondent’ – simply in order to move on with their lives. We request Ministers take the opportunity of legal reform to also bring the language of divorce into the 21st century, using words we can all understand.

 

Jane Robey
CEO, National Family Mediation
December 2018

Proposals to boost take-up of MIAMs

Improving the take-up of Mediation Information and Assessment Meetings (MIAMs)

 

This briefing note, outlining proposals to increase the take-up of Mediation Information and Assessment Meetings (MIAMs) was issued by National Family Mediation to Family Justice Minister, Lucy Frazer MP.

Summary

This document outlines National Family Mediation’s proposals to the Minister for increasing the take-up of MIAMs, and is written in response to the Minister’s request for such a document, in her letter to NFM dated 30 May 2018. It is written in the spirit of collaboration and co-operation, and the strong belief that a top-down drive is needed from government level if falling levels of MIAMs and mediation starts are to be reversed.

The document was written following consultation with members and affiliates of NFM, the largest provider of family mediation in England and Wales.

 

1. Stronger use of existing court powers

The excellent work being done by HMCTS to make applications for divorce and the C100 available online is encouraging. Both products help demystify the application process and use common understandable language. NFM’s hope is that these are rolled out nationally very soon as they may well help to improve MIAM take-up.

These improvements do not and cannot address the issue of the respondent’s non-attendance and without this being tackled, we fear the take-up of MIAMs will never improve. The single key to unlocking this problem lies with the judiciary, whose power and influence in managing cases could transform the effectiveness of the department’s policy.

However, it important to stress that mediation providers feel huge frustration at what they perceive as the inertia of the judicial system.

The experience of NFM mediators across the country is that judges tend to take the attitude of “now that you are here in court, let’s just get on with your case”, and consequently the compulsory attendance at MIAM is largely ignored or disregarded. This approach is of course adding significantly to the pressures in court time and, inevitably, adding costs for the taxpayer.

NFM recently met with a court manager and staff who said that whilst they check to see if the mediator name and number is present on the form, they do not raise any questions about the validity of claims where forms have been self-exempted. Furthermore, that the court makes no enquiry of the respondent who invariably has not attended.

CAFCASS identifies that 30% of its workload has no risk factor, but the case has escalated through the family court system, using significant time and resource both of the Court and CAFCASS. These families could and should all be offered easy access to mediation. Contact issues are seldom technical legal issues: they are more a problem of conflict and communication.

As a charity NFM is by far the most successful family mediation provider in England and Wales, much of this can be attributed to the engagement and marketing work undertaken centrally by NFM and its affiliates. Yet the success of the government’s drive towards family mediation cannot be left to hinge upon small local providers developing relationships with local courts, where whim and personality too easily wins the day.

My own recent personal experience of meeting with two courts indicated there was no will to engage with challenging existing practice, and looking seriously at alternative ways of operating, even though doing so would cost them nothing, and would significantly reduce their workloads. This is reflected by the experience of NFM affiliates, and is indeed not limited to mediation. Other services, such as the Personal Support Unit, have related similar experiences where a court’s warm words of support are not then translated into increased referrals to the services.

In a written Parliamentary answer (121728) as Minister you stated that ‘training and guidance on the court’s powers is available for the judiciary and court staff’. This is welcome, and we trust its content and the requirement for staff to attend updated training referring to mediation, is under review.

During a recent discussion with a family JP I raised the idea that when a case is adjourned for a Separated Parents Information Programme (SPIP) the court could order a MIAM as a contact activity at the same time. The response was that the JP had targets to meet. This raises questions about the weighting of court targets, perhaps being targeted in areas that impede mediation’s potential to transform lives.

It is NFM’s view, based on considerable experience, that if the Ministry of Justice worked more closely with the judiciary, monitoring more closely the activities of the courts and setting greater expectations about how cases are managed (especially in relation to the requirement to attend a MIAM) there would very quickly be a stark change in behaviour, and a change in the profile of the people going still through the court system.

 

Proposal

NFM believes that close working with the President’s office to influence judicial behaviour would help the department ensure greater success in its policy to divert people from court proceedings – and to do this very cheaply. Importantly it would also free up judicial time to concentrate on the cases that really need intervention where children are seriously at risk. We therefore propose the department works closely with the President-Designate to:

  • Encourage judges to make use of their existing powers under S.11a of the Children Act 1989 to adjourn cases for attendance at a MIAM as a contact activity – either separate to an order to attend a SPIP programme or at the same time. This would mean mediators would have access to more separating couples, and therefore not only increase MIAM take-up but also to convert people to undertaking full mediation.
  • Introduce court targets for MIAM attendance.
  • Review training and guidance on court powers for judiciary and court staff’, including any requirement for staff to attend.
  • Ensure more rigorous gate-keeping of applications to court where a MIAM has not been attended, encouraging judges to order attendance at a MIAM as a contact activity where people in court do not meet the self-exemption criteria and have not attended.
  • Set targets for CAFCASS to refer more cases where there are no identified risks to mediation. The current Manchester pilot should provide some useful data for practice in the future, but there is a fundamental training issue for CAFCASS officers to ensure they consistently consider using independent mediation as an option for resolving cases.

 

2. Make MIAMs free of charge

Family mediation is suitable for many more people than currently use it and, if recent efforts to embed mediation into the mainstream, and accepted as the norm for settling disputes, are to prove a sustainable success, potential clients need to be provided with more incentives to try it.

Currently there are obstacles and blockages created by our need to charge fees to people whose lives are in flux and chaos. Whilst many more people are now aware of the existence of family mediation than they were even four years ago, potential mediation clients do not know enough about the process to understand that it might be right for them. As a result they are reluctant to invest in a service that they do not fully understand, or truly believe will work for their situation.

The availability of legal aid for mediation has been very poorly advertised. The impression is that legal aid is only available if you can get through the domestic violence gateway. No attention has been paid to promoting access to legal aid for mediation which would help with the de-escalation of cases.

Despite being advice services, too many CABs appear to be very poorly briefed on this and experience tells us they frequently give out inaccurate information. This is compounded by the fact that lawyers very often choose not to refer to mediation because doing so means they lose private client fees.

Anecdotally, all NFM services hear judges say that by ordering people to attend a MIAM they are exposing those people to additional fees and that this infringes their rights to access to justice.

 

Proposal

  • The simplest way to improve MIAM attendance and improve conversion to full mediation would be to make the now-compulsory MIAM meeting freely available to all, particularly at the point people are making application to court.
  • Improved awareness- raising to promote access to legal aid for mediation.
  • Reflect on the current court targets in the context of the drive to increase MIAMs, and consider including court adjournment for MIAM.
  • Currently people can apply to get help with court fees using form EX160. At the point of being assessed as suitable for this help, there should be a requirement that both parties attend a free MIAM (in the same way that if one party is eligible for legal aid the second party can attend the MIAM without charge). The mediator would then have access to both parents, reversing the current situation whereby there is a much higher percentage of sole MIAMs taking place, effectively as a ‘box-ticking’ exercise to enable access to court.
  • Reflect on the respective eligibility criteria for help with court fees and access to Legal Aid. Ensuring both sets of criteria match would provide a further effective means of increasing the take-up of MIAMs.

 

3. Review Legal Aid funding and processes for family mediation

The rates of payment provided to mediators have not increased for 20 years, and cuts have been made in some funding including, crucially, the Willingness Test. This funding previously acknowledged the value of mediation services investing time and effort into engaging Client 2 in mediation.

Since the introduction of LASPO the government spend on mediation has dropped by over 50% and NFM believes it would benefit government to re-invest in the payment system for mediators to improve access for the public.

Eligibility rates for legal aid have been cut and following LASPO legally aided cases have reduced to in the region of 20%.

A capital cap has been introduced on the subject matter of dispute. This means for people who are separating where their family home is in dispute – which it obviously is because they have yet to separate their assets and liabilities – they can find themselves not eligible for legal aid, with eligibility being assessed on an unrealisable asset at the time of needing to sort out their finances. Most of these people are cash-poor and asset-rich at the time of needing to access dispute resolution services.
Simplify the eligibility assessment process. The CIV Means 7 assessment form is 10 pages long and if eligible the fee is £87. Legally aided family mediation services are not in the same position as those providing other legal aid contracts. All mediation is delivered on fixed fees and is never paid on hourly rates.

The financial exposure of the LAA agency is extremely limited with regards its management of the family mediation budget unlike all other contracts where costs can escalate once cases tip into hourly fees. That never happens in mediation and the maximum a mediation provider can ever be paid for a case is £1,446, comprising two people eligible for LA ,attending 1 joint MIAM session, multi session all issues mediation, and an outcome.

 

Proposal

  • We propose a working party to review the pay structure for mediation, including a review of the single free session introduced following the Family Mediation Task Force report produced in 2014. This has cost mediation providers as they have lost fees as a result, and has also set up unrealistic expectations for fee-paying clients that they want their case resolved in one session because it is free.
  • Introduce a statutory charge, as was previously available for legal services, that is chargeable on completion of mediation so that people can engage with the process at a time of most need, ensuring that the taxpayer is not footing the bill.
  • Review eligibility and assessment for legal aid in mediation and simplify the process, undertaking a cost-benefit analysis of the cost of auditing mediation contracts. The costs to both provider and the LAA are disproportionate to the sums being paid. Mediation providers are never going to make it onto the highest paid legal aid providers list and the cost to the LAA – and ultimately the taxpayer – of auditing these very small services is excessive and disproportionate.

 

– Jane Robey, CEO, National Family Mediation

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