Mediation Cut Price Justice- On the Cheap
By Holly Newton-Steele
Published on October 4, 2016
This article will consider whether the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA) and the subsequent restrictions on the scope of civil legal aid have increased the role of mediation as a mechanism for dealing with family disputes. It will determine whether mediation is now more sought after, and capable for delivering optimum outcomes. With reference to substantive law, policy and academic research, the argument will be made that although mediation is more frequently used and favoured by government, it fails to ameliorate the position of vulnerable parties and therefore directly contradicts the impetus of the Act. It will be concluded that, mediation in family law has considerable disadvantages that outweigh benefits that may accrue.
Mediation may be defined as a form of alternative dispute resolution or ADR (Government White Paper Looking to the Future – Mediation and the ground for divorce 1995 Cm 2799):
‘[A] process in which an impartial third person, the mediator, assists couples considering separation or divorce to meet together to deal with arrangements which need to be made for the future’. The Paper outlined that mediation’s sole aim is to help couples ‘reach their own agreed joint decisions about future arrangements; to improve communications between them; and to help couples work together on the practical consequences of divorce’.
The Evolution of Divorce Law
Prior to the enactment of the 1857 Matrimonial Causes Act, decrees of divorce were, from a judicial perspective, the sole preserve of ecclesiastical law. Providing person(s) had successfully petitioned the Church, the right to remarry could only be granted virtue of a private Act of Parliament. Under s.1 of the 1857 legislation men were permitted to divorce on grounds of adultery, which before the Act was an actionable tort, and before that a felony punishable by death. Similarly, women were given the power to divorce their husbands, however if actual dissolution of marriage was sought (as opposed to judicial separation) s.27 laid an additional onus upon the woman, she also had to prove ‘additional faults’, such as violence, incest or rape.
Under the Matrimonial Causes Act 1923, introduced as a Private Member’s Bill, women were finaly given equal powers in divorce. They still had to prove adultery, but an accompanying ‘matrimonial fault’ was no longer required.
In 1937, the grounds for divorce were extended to include factors such as insanity, drunkenness and abandonment.
The Divorce Reform Act 1969 allowed divorce if there had been in irretrievable breakdown of the marriage and a two year separation (five if only one party consented). This triggered the introduction of ‘no-fault divorce’, where neither party had to prove any marital faults.
More recently, the concept of family mediation has been promoted and clarified in a range of statutes, notably the Family Law Act 1996, Access to Justice Act 1999, LASPOA 2012 and the Children and Families Act 2014.
The LASPOA is a result of the legislative intent to limit expenditure, with a projected annual saving of £440, cited by the Ministry of Justice Impact Assessment: Cumulative Legal Aid Reform Proposals. In respect of Private Family Law matters, the Government Green Paper preceding the Act Proposals for the Reform of Legal Aid in England and Wales 2010 Cm 7967 expresses the objection that, save for the presence of domestic violence, Private Family Law issues should be expedited by economic forms or resolution; namely mediation. In response to the consultation, the Bar Council of England & Wales stated ‘Mediation is not, and should not be regarded as, a substitute for access to justice’. However, the LASPOA has occasioned the largest overhaul of civil legal aid in fifty years, and may be the final nail in the coffin of this area of public subsidisation.
A Feminist Perspective on Mediation
It is speculated that mediation may exploit the interests of weaker parties, arguably the party with naturally inferior negotiating skills. Herring concludes that women are likelier to have the weaker interest in negotiations, as they are ‘socially conditioned to avoid conflict’ and are usually in a lower position financially. The infliction of social norms may be enforced by mediators and judges alike, which may occasion a growing enforcement of gender stereotypes. Neal and Smart offer the example of women being burdened with the responsibility of childcare . This is valid but may also work in disadvantage to male parties. For example, they may seek to be the carer of a child, yet their traditional role as the ‘breadwinner’ could hinder their claim.
Moreover, although judges are seemingly impartial, the majority are older, white, middle class males. This may lead to them holding the traditional norm that the male is the breadwinner, and this may be reflected in the settlement. Feminist commentators may favour mediators, as they are a more diverse group and are more likely to consider the parties equally. Diduck deduces, however, that this may not be necessary, as the process of divorce has gone from ‘traditional patriarchy to equality’. This may be because of judicial impartiality, however it may also reflect societal changes, i.e. women breaking through the glass ceiling. The role of females in the family was a critical focus for the landmark case of White v White, where the position of a home maker was deemed equally as important as that of the primary earner.
The Role of Children
Does mediation effectively protect the interests of any children involved? The Code of Practice issued by the Family Mediation Council outlines that mediators should ‘encourage participants to focus on the needs and interests of the children as well as on their own’ and The Ministry of Justice states that ‘mothers and fathers, working together, are the best people to make arrangements about their children’s lives’. The latter statement is arguably based on an extremely ideological perspective of society. As children are not involved in the mediation process personally, their best interests are dictated to them through the eyes of their parents and the mediator. Dingwall’s studies highlight the disadvantages of this, determining that ‘fathers are more likely to discuss children’s needs in terms of what children in general require than to their specific children’. This may have been a valuable observation in the early 1990s, however may not be as plausible today. This allegation infers that most fathers are insufficiently close to their children to determine their specific interests for the future, possibly due to the stereotype that the mother would be primarily responsible for childcare. In the contemporary context this position has changed, both parents now spend more time with their children. Moreover, this view does not facilitate mediation in terms of homosexual male parents.
Elaborating on Dingwall’s argument, each child’s needs are different, and these may be best determined by the parents in mediation as opposed to the courts. Judges arguably explore the ‘needs of children’ as opposed to the ‘needs of a specific child’; there is often a fundamental difference between the two. During mediation, however, the mediator builds a rapport with the parents and is likely to uncover more about the specific child’s needs and what settlement would best suit them.
The Media’s Portrayal of Mediation
Mediation is predominantly glorified by the media, emphasising the personalisation of the settlement, the emotional support offered, and the inevitable governmental savings.
A Guardian article, following the introduction of the LASPOA, asserted the flexibility that mediation provides in a settlement. The parties are not restricted to negotiating what the court deems important, it instead varies on a case by case basis. As stated:
‘the parties have ownership of them [mediation settlements], they’ve helped make them. They’re not court orders, handed down from on high’.
The unique and personal nature of each mediation settlement may be beneficial for the parties of mediation, but from a legal perspective this may be a step back for the Law.
Professor Jonathan Herring (University of Oxford) supports the apparent benefit that mediation is more flexible than court proceedings as there is ‘no right answer’. Solutions are informally tailored to each party as opposed to being formulated by judges and the law, which categorise cases in adversarial proceedings. However the flexibility of mediation may contradict a key principle of the Law; that of Legal Certainty. Lord Reid, in R v National Insurance Commissioner (ex parte Hudson)  , explores the consequences of deviating from judicial precedent, notably the increasing uncertainty of the law. If there is little consistency between judicial decisions, the law is implemented inconsistently between different cases and parties. Adopting a jurisprudential approach, such a result would invert a predominant feature of Dicey’s Rule of Law; the Principle of Equality. This alleges that everybody is equal in the eyes of the law, and thus should be subject to the same judgement. Contrasting mediation, the courts are bound under the doctrine of precedent (derived from the legal maxim Stare Decisis) to judge cases of similar material facts in the same way – treating ‘like cases alike’. These guidelines may lead to the categorisation of cases; however they may reduce the time taken to reach a settlement by referring to the precedents set by previous cases. This is not apparent in mediation, where every case is judged separately. Governmental institutions have attempted to counteract this allegation, notably the EU Commission Report on the application of Directive 2008/52/EC, stating that frequent use of mediation will produce ‘a predictable legal framework’ and foster a non-litigious culture. Similarly, Lord Faulks (Conservative member of the Lords and former Minister of State) proposes that ‘Experienced practitioners are able to predict—not with certainty but with some confidence—the outcome of cases and then advise their clients accordingly’; yet there is little empirical evidence to support this.
Following the LASPOA, the media also championed the emotional benefits of mediation although these promotions are becoming increasingly sparse. A review of the 2016 BBC2 series Mr v Mrs: Call the Mediator, providing an insight into a variety of national family mediation centres, detailed the emotional aspects of mediation for the parties. It summarises, ‘they were more human and vulnerable out of the room. The moment they faced their old lovers, though, that humanity sank into the depths again of stubbornness and fury’. Despite this observation, a recent Family Lore article stated that the broadcasting of this show led to a noticeable ‘spike’ in those actively seeking mediation .
Mediation is said to promote effective communication and reduce animosity and discord between parties because of its informal nature. It seemingly reduces contention between parties and acts as a better forum for resolving the emotional issues of divorce, because having a personal mediator with which the parties can build a rapport holds connotations of counselling. As a result, it would be plausible to say that the parties will be more comfortable with a settlement into which they have had input, as opposed to a judge dictating it. Lord McNally advocates this view, stating that ‘mediation has a good story to tell of thousands of people achieving settlements in a way that is faster, cheaper and less stressful than mud-wrestling through the courts’. However, Lord Dyson (Supreme Court Judge) highlights the repeated discomfort felt by parties when they have to negotiate with those who ‘they believed wronged them’ during mediation. This further implies that a ‘day in court’ would be less painful for the parties, and suggests that if the settlement is made in an uncomfortable and perhaps hostile environment, the family dispute will be incapable for successful, long term resolution.
Mediation: Objectivity or Bias on Behalf of the Mediator?
If a mediator influences the content of the agreement, directly or indirectly, mediation may in effect become adjudication in secret. Mediators hold judicial power in terms of settling negotiations and implementing divorce settlements, without having to provide reasons or be held publically accountable for the outcome.
Professor Herring avers that Mediators are becoming increasingly influential regarding the content of the agreement, a concept supported by Professor Christine Piper (Brunel University London) who states that mediators only include matters that they themselves see as relevant . As a result, issues that mediators deem trivial will be excluded, therefore saving time and money, but perhaps depersonalising the mediation process. Herring explores the model of minimalist intervention, implying that mediators can intervene only when reasonable to do so, in order to make proceedings as fair and just as possible. This is a prominent advantage of mediation; however, it is a feature also apparent in the courts. Subsequently, potentially valid arguments are presented concerning impartiality. If mediators are capable of sharing some of the benefits associated with the judiciary, then they might also be subject to similar documented biases.
Baroness Deech alleges in a reading of The Divorce (Financial Provisions) [HL] Bill 60 2015-15 ‘Couples are left to bargain in the shadow of the law but do not know what the law is, or how to find out what it is’. Consequentially, mediators inevitably have to intervene and shape the course of the mediation process. This may be controlled, to some extent, by the ‘model of minimalist intervention’, implying that mediators can intervene only when it is reasonable to do so, in order to make the proceedings fair, just and reasonable.
Summary: Mediation as a Suitable Form of ADR?
Mediation can be an effective form of ADR; however pushing couples to undertake mediation by restricting their access to legal fora seems illogical. Many couples are forced to undertake mediation or, as Richard Bacon MP highlighted in debates, lie and ‘throw mud at each other’ in order to be entitled to court proceedings HL Deb 13 Oct 2015 vol 600 col 189 Legal Aid cuts and saving on government expenditure should not prevail over access to justice; this is a dangerous approach to policy decision making and a step back for Family Law as a whole. At this point, the future of mediation appears uncertain. As stated in the EU Commission Report on the application of Directive 2008/52/EC, its effectiveness is extremely hard to measure. Although there are many case histories, and vast governmental encouragement, the Independent has observed that ‘the number of couples starting state funded mediation decreased by a third between April to September 2012 and the same period in 2013, to 4,692’. Whilst mediation may offer emotional support and comfort for some parties, it may trigger emotional trauma for others. Mediation should be a process that is freely selected as opposed to a form of dispute resolution enforced due to a lack of alternatives. If a couple wishes to negotiate personally, the parties are likely to reach a successful and lasting settlement. Equally, forcing a couple to negotiate on bad terms may cause significant emotional trauma and lead to an unstable settlement that may be subject to an inevitable future re-negotiation.
Holly Newton-Steele is a Third Year Law Student, studying at The University of Leeds. Her areas of interest include Family Law, Medical Law, and Public International Law
Article picture: SPOTSOFLIGHT via Pixabay