The Ministry of Justice releases a bulletin from time to time that brings together the most recent and most pertinent research on aspects of the family justice system, and the people that move within it. The most recent edition throws up a few interesting facets that we thought we’d share with you in this week’s blog.
The first research project it highlights is on MIAMs (Mediation Information and Assessment Meetings) and mediation in family law disputes. The project looked particularly at the statistics on the use of mediation where neither party was entitled to Legal Aid. This in itself is interesting, as most MOJ funded research has focused on the taxpayer’s spend and the value-for-money of the legal aid budget. This looks at the other side: people who are considered to have enough money to fund their own dispute resolution proceedings on divorce.
The survey found that privately funded family mediation clients were more likely to be discussing finance and property issues, while legally aided clients were more likely to mediate issues about children’s arrangements. The private clients were also older. After seeing a mediator for a MIAM, somewhere between 66-76% of privately-funded clients went on to mediation, and former couples managed to find a partial or total resolution in 68% of cases analysed. We note that some people have found this a surprisingly high figure. To us it is not unexpected at all, as it chimes with our experience, but it is still reassuring.
The high numbers of those engaging in mediation who go on to reach agreement gives some backing to the MoJ’s policy, now statutory, of making it compulsory to see a mediator for an information meeting before commencing court proceedings. The more people that are converted to mediation as a process for resolving their disputes, the fewer people end up in the courts, with all the stress and resource implications that entails.
What the survey also flagged up, however, is that the timing of the MIAM – just as someone is preparing to apply to court- means that opportunities are missed to facilitate conversations, and reduce the temperature of disputes before they are fully formed. The earlier in a family crisis that a person gets proper information about different methods of dispute resolution, the more likely they are to stay out of court. We talked about the need for early intervention last week, here.
Another study reported in the bulletin concerns the approach of courts to making orders about shared care between parents after separation. The study considers what courts were doing before the introduction of the statutory presumption that the involvement of both parents in the children’s lives will advance their welfare, unless there is evidence to the contrary, in 2014. The study was small, at less than 200 cases.
Of the cases considered, it seemed that 56% of the parents involved had tried to make arrangements between themselves before turning to the court, but only 7% had tried mediation. Fathers made 70% of the applications, and only 14% of the cases went as far as a final hearing. Other interesting statistics thrown up by the research indicate that a quarter of cases involved allegations of serious child welfare concerns and social services involvement, allegations of domestic abuse were made in 49% of cases, and the courts considered evidence regarding the child’s wishes and feelings in 39% of cases.
This low proportion of children whose views are taken into account is surprising perhaps, but may perhaps indicate a high number of very young children involved in the proceedings.
The researchers concluded that mediation could not have assisted most of these former partners. We are not sure from the summary on what basis they supported this conclusion – perhaps the high incidence of child protection concerns or abuse allegations, which can make disputes unsuitable for mediation. The study did find that most cases were resolved by a consent order in the end, as only 14% ended up with a judge making a decision, and we feel this indicates that perhaps some impartial intervention at an earlier stage of the separation may have averted the need for court. The low numbers having tried mediation do not seem to tally with the report of most that court was a last resort. Nevertheless, the researchers believe that court involvement in these cases was a valuable option – some cases simply do need adjudication, however well-intentioned the parents involved might be.
One of the other main findings of that report was that there was no evidence of gender bias in contested cases about where the child or children would live. This should be reassuring to those who are concerned that the courts might discriminate on the grounds of gender.
The study also found that even before the introduction of the statutory presumption of the involvement of both parents in 2014, the courts were promoting contact with both parents wherever it was safe for the child. Those who suggested that the government’s law change was less a demand that the courts refrain from acting discriminatorily and more a publicity-focused reflection of current practice may have been right after all.
The unifying factor of these two studies appears to be a plea for efforts to be devoted to getting information about different dispute resolution options to reach separating families earlier in the process in order to assist them to achieve the best outcomes in the shortest time and at the lowest cost. With so many surveys and research projects coming up with the same recommendation, there is now quite an impetus for a solution.
If you’d like some advice or information about your next move, you can call 01223 443333 to make an appointment to see Tricia, Gail, Simon, Sue or Adam.