Dispute Resolution Consultation Closure

The window of opportunity to submit evidence as part of the Government’s Dispute Resolution in England and Wales consultation has now passed, and I am sure that dozens of experts and interested parties with experience in this field took the opportunity to respond with their own ‘frontline insights’ and ‘tangible examples’.

I was one such respondent, with evidence submitted on behalf of all of the National Family Mediation members, collated following many decades of working exclusively with families experiencing divorce and separation.

Sadly, however, I can’t quash the feeling of Déjà vu, as we find ourselves back on the familiar merry-go-round of consultations and (dare I say it?) naval gazing.

Of course, we all hope that in due course the evidence submitted will result in meaningful change and investment at some point in the not too distant future, which will facilitate mediation in conflict situations and scenarios across the board, but it does little to address the very real and immediate need for alternative means of dispute resolution in the here and now.

The significant logjams within the family courts have been widely publicised for many years now, but the pandemic has made matters worse, with more families than ever facing conflict because of the added pressures brought about by money worries, job losses and lockdown.

In turn, these families are turning to the Courts to provide some form of solution, further exasperating the issue. Indeed, statistics produced by government show that in April to June 2021, it took on average 41 weeks for private law cases to reach a final order –  i.e. case closure – up 13 weeks from the same period in 2020.

CAFACASS report similar delays, with the average length of time they worked with families in private law proceedings increasing from 18 weeks at the end of Q4 2016/7, to 27 weeks by end of Q4 2020/21, and increasing further still to 28 weeks in the latest quarterly figures.

Simply put, relying on getting a case settled in court is going to take longer than it should, and despite the positive noises from the MOJ about increasing the use of mediation, we simply cannot afford to wait months for a solution.

Instead, more emphasis needs to be placed on enforcing the existing rules; namely, from our perspective, the compulsory requirement for applicants to attend a MIAM before submitting an application to the Court for a parenting or financial order on a family matter.

Despite the Ministry of Justice immortalising this under section 10(1) of the Children and Families Act 2014 in April 2014, the monitoring of attendance at the compulsory MIAM has been haphazard and inconsistent. Had it been working as intended the numbers of people going through a MIAM and subsequent mediation would have recovered to pre LASPO levels.

Instead, those numbers are still 50% lower than they were six years ago, with both courts and Cafcass identifying that this includes many children’s cases.

In my experience, the reason for this is two-fold. Firstly, there appears to be no consistency in how the Courts verify whether someone has actually attended a MIAM or not.

Now I certainly don’t want to add to the already overwhelming backlog of paperwork that the Courts are contending with, but surely introducing more robust checks and measures would have a positive impact on the overall caseload, allowing those that genuinely need a hearing to be dealt with more quickly.

Secondly, there appears to be a disconnect between what the Courts, and what the general public consider to be urgent.

In any given month NFM deals with an average 700 referrals, and around 3,000 telephone calls, during which the same concerns are raised time and time again. ‘I want to see my kids’, ‘I’m not receiving child maintenance’, and ‘where will I live now we’ve split up’.

Of course, for the people at the centre of the conflict these are very pressing, distressing, and urgent issues, but they are not grounds for exemption. The exemptions mostly involve more extreme matters such as a child at risk, or where domestic abuse has taken place.

And there is always the added difficulty that client two, usually the respondent, has not engaged at all with a mediator.

In cases where people have mistakenly declared themselves exempt or where it is evident that both parties have not attended a meeting with a mediator, the Courts, again, could use the powers they already have.

Judges should be encouraged to make use of the S.11a of the Children Act 1989 to adjourn cases for MIAM attendance as a contact activity – either separate to an order to attend a SPIP programme or at the same time, and as routine when families are set to face significant delay before they come to court.

Certainly, with the very welcome further extension of the voucher scheme, many would likely find mediation a far more amicable, cost-effective and speedier route to a solution.

And given the 77% success rate of couples attending mediation on the voucher scheme combined with the 73% of cases who once they have reached agreement do not go on to use the court, this could have an immediate and hugely significant impact on alleviating the pressures currently faced by the family courts.

Perhaps, on this occasion, at least part of the solution is already within our grasp.

Jane Robey, CEO, NFM