A functional dispute resolution system should offer a variety of affordable options to all.
It was after spending a half-day at court negotiating the release of some hamsters held hostage by a mother who had lost custody of her children that I decided to become a mediator. The law is rational, adversarial and evidence-based, but often litigation is the result of irrational emotional drivers caused by issues that are legally irrelevant and not susceptible to adjudication. Sometimes a trial is necessary, but many cases would be better resolved cooperatively, affordably and speedily in mediation.
A functional dispute resolution system is one of the hallmarks of a civilised society, bringing reason and justice to bear on disputes. Yet it does nothing to help parents co-parent their children when, following a judgment or last-minute consent order, litigation results in communication between the parents breaking down. Technically the case is closed, but the job of parenting continues despite the fact that the parents have lost the ability to parent without adjudication. Parents should be encouraged to mediate in order to avoid their children growing up in a conflict-ridden atmosphere.
In family cases would-be litigants have to hear about mediation at a mediation information assessment meeting (MIAM). Some then mediate an agreement. Civil litigation has no such filter, which explains the infinitesimal take-up of non-family mediation. Meanwhile High Court fees prevent many court applications, and access to justice is denied to many.
A functional DR system should offer a variety of affordable resolution options to all. Mediation should be embedded in the system and MIAMs should be extended to civil cases prior to issue of proceedings in order to divert cases that can be agreed away from the courts. Judges should manage cases proactively in the interests of speedy and affordable resolution by whichever process is more appropriate, be it litigation or mediation. The court system should have key performance indicators taking into account time taken and costs as a proportion of the value of the dispute. Judges should also be systematic about monitoring costs.
Once total costs reach 20% of the case value, mediation should be almost automatic. Where costs exceed 50% of the value, as can sometimes be the case, then the system has become dysfunctional.
There are different types of mediation available to suit different cases and mediation should not be regarded as a hurdle to be overcome before proceeding with litigation. The one-day civil mediation for divorcing couples with lawyers present and a binding financial agreement signed on the day is proving increasingly successful and attractive to clients. This model should be used more frequently to avoid trials and prevent costs escalating out of proportion to the value of the case. Where child arrangement applications are concerned, for example if a CAFCASS report in a case involving children is clear, parents should be referred to mediation before the trial is fixed to facilitate agreement and avoid repeated court applications.
In one specific case, when a judge granted a prohibited steps order with leave to remove a child from the jurisdiction in principle and adjourned the case for the detail to be mediated, this inspired decision helped the parents rebuild their parenting skills and forge an agreement in mediation instead of having no template for negotiating contact after the child had gone abroad.
Lawyers and mediators should work together to ensure resolution is achieved as efficiently as possible. The biggest threats to lawyers are not mediators, but are:
- the public’s fear that lawyers are unaffordable and take too long;
- the unregulated, unqualified competitors offering easy and cheap solutions; and
- the many do-it-yourself options advertised on the internet.
Mary Banham-Hall is a solicitor, FMCA, lead mediator and managing director of Focus Mediation, and a family law consultant at Heald Solicitors. Her new book, Love Lose Live: Divorce is a Rollercoaster, with a foreword by Lord Wilson, is out now