Jersey & Guernsey Law Review – February 2014

 

Shorter article

The Place for Mediation in Family Law

Marian Whittaker and Alison Brown

The article contains a brief history of Jersey’s commitment to mediation and notes the current position, including references to statutory provisions. It compares Jersey with England and Guernsey and provides an analysis of court-based outcomes and their shortcomings in comparison with mediated outcomes, while providing a brief summary of each process. The accreditation and training requirements for mediators are set out with some information on the re-launched service known as Family Mediation Jersey. The continuing role of a family lawyer in circumstances where mediation is routinely used is also considered.

1  There are many ways to resolve disputes from informal discussions at one end of the scale through to full court proceedings at the other. Any process other than a court-based solution is now commonly referred to as alternative dispute resolution (ADR) and a quick glance at many large firms’ websites shows how the term “dispute resolution” is now used for what was once a litigation department. It is recognition that there are viable and beneficial alternatives to court-based solutions, which are not always the best route to follow.

2  Dispute resolution takes many forms some of which are, roughly in the order of their formality—

•   informal discussions

•   friend/family assistance

•   mediation

•   collaborative law

•   negotiations with the assistance of lawyers

•   formal arbitration

•   the court process.

3  If parties can resolve their differences with informal discussions they have the skills necessary to avoid an intractable dispute. Sadly, many do not, probably because of the unique challenges faced by parties in family disputes; as relationships fracture, the parties’ ability to talk without rancour may be impaired. If the parties are still living under the same roof, even greater friction may result.

4  The available options have different characteristics and benefits and some will suit a situation, or the parties, better than others. How the information about available dispute resolution resources can or should be made available, is a moot point. Is this a community or State responsibility, or a matter for the legal adviser?

5  The Royal Court of Jersey turned its mind to such matters many years ago and, in 2002, a report “The development of Alternative Dispute Resolution in Jersey”[1] was produced. This report addresses in great detail the issues referred to in this article, which, in turn, provides an overview of the current position in Jersey in relation to the place of mediation in a family law context. It is interesting to note the first three points of the summary at para7—

“The following are the key recommendations in this report:

ADR. Jersey should adopt a relatively bold approach to incorporating ADR into its legal system. This is consistent with its broader ambitions for the legal system and its standing as an international finance centre. Jersey can take advantage of the lessons learnt in other countries.

Mediation. Mediation should be the type of ADR on which Jersey focuses.

Time, investment and culture change. Incorporating mediation will take time, and require commitment and investment. It will have to involve a degree of culture change amongst stakeholders.”

6  Jersey did have a family mediation organization in the past which, regrettably, fell by the wayside. Mediators who were trained moved away from the Island, or chose not to continue. So, is there a need for such an organization now?

The family law dispute

7  There are some aspects of resolving difficult differences within families which are particular to the family setting, the most obvious being the close relationship between the parties, their children and the wider family. In the case of children the parties must have a continuing parenting relationship irrespective of their personal, one might say, “adult” differences. The parties will, generally, already have a considerable amount of knowledge about each other and his or her affairs. Also, it would be unusual if there had not already have been a high level of contact between the parties whether about the issue in dispute or other more mundane matters.

8  By the time help is sought, there may already be a feeling that a court solution is the only option because the parties’ positions may already be highly polarized. Channels of communication are likely to have shut down and be at an end, and one, or both, may feel that a mandatory court order is the only way forward.

9  The expression “parties’ positions” is used deliberately. In resolving a dispute it is often helpful to bear in mind that it is the parties’ positions that may be polarized rather than the people themselves. In a family setting it does not take very long to see that whatever their expressed position may be, and whether or not they consciously acknowledge it, the parties will usually have much in common; notably, a wish to resolve matters, a need for the children and each other to be provided for and a need for the children to see both of them, to name the most obvious areas of common ground, or common interest.

10  Of course, the devil is in the detail, and working out a solution seen as fair, and therefore acceptable to both, is the aim of any dispute resolution process. If either or both of the parties are left with a sense of unfairness it follows that any agreement, or court order for that matter, can itself become a further point of friction, undermining the whole outcome.

11  A party’s position is dictated by history, background and life experiences, and of course by his or her feelings. Their position may also be highly influenced by advice from well-meaning family and friends, and, one hopes, any legal advice they may have received. Most of the important influences in a person’s life inform their decision making processes.

12  In the family setting, it is very rare to find a person who expects no financial settlement or no contact between children and both parents. Resolving a family dispute is therefore a question of working out what is the most appropriate outcome for those people in their particular circumstances. What will be the most likely means to achieve a fair outcome supported by the parties, which will therefore, hopefully, be a long term solution?

13  Non-court-based outcomes are usually a form of negotiated, or conversation based, solution which may loosely be described as mediation. Mediation involves an independent person facilitating the conversation/s between the parties enabling them to speak up about their needs and fears and to reach an acceptable solution. It is not a question of being obliged to compromise, although they may choose to do so. It is more a question of coming to view things differently and moving or changing position to a point where a solution to previously highly contentious issues becomes achievable. Many meetings can take place and parties can easily return at a later date to iron out any outstanding issues. This provides time for a comprehensive agreement to be reached, tested and reduced to writing. This flexibility is a considerable strength of mediation in family disputes.

14  A court-based solution results from a process driven by a rigid court timetable creating the necessary structure to prepare a case to be heard by a judge. This involves preparation of documents and gathering of evidence. A day is set when evidence is presented to the court, legal argument takes place and the judge decides what is to happen. The case is (usually) then at an end and the court’s order cannot easily be amended.

15  Most family lawyers would agree that any court process is unwieldy, slow, of uncertain outcome and incredibly expensive. This is particularly so in family matters where the emotionally charged participants have a very personal interest in the outcome. Most family lawyers would far rather the significant sums of money spent on their services were retained by the parties for their mutual financial benefit. There are many reported cases where judges criticize the amount of resources spent by the parties in bringing matters to court. In a recent English case,[2] Holman, J urged a couple embroiled in a dispute not to commit “financial suicide”. The parties had already committed nearly one-quarter of their wealth to the “highly charged litigation”. The authors of this article have both experienced judges in Jersey making exactly the same point to litigants.

16  For all the powerful foregoing reasons, in England and Wales ADR in family matters gained official approval with the issue of the Family Procedure Rules 2010. Rule 3.2 specifically imposes a duty on the court to consider ADR and Rule 3.3 provides for when the court will adjourn existing proceedings or a hearing to enable ADR to take place. Such statutory endorsement of ADR is illuminating in as much as it provides a clear acknowledgement of the limitations of judicial solutions in family matters and the beneficial aspects of ADR in this context.

17  Jersey has long shown a willingness to allow adjournments for negotiations, or mediation, to take place, and, indeed, has often given judicial encouragement to the litigants to follow that course. In Jersey the court now has an “overriding objective” which is to deal with cases justly.[3] However there is no more guidance on the appropriate outcome, although the Rules do at least go on to set out matters that the court must consider to achieve this laudable aim—

“47  Overriding objective

(1)    The overriding objective of the Court is to deal with cases justly.

(2)    Dealing with a case justly includes, so far as is practicable—

(a)    ensuring that the parties are on an equal footing;

(b)    saving expense;

(c)    dealing with the case in ways that are proportionate—

ii(i)   to the amount of money involved,

i(ii)   to the importance of the case,

(iii)   to the complexity of the issues, and

(iv)    to the financial position of each party;

(d)    ensuring that it is dealt with expeditiously and fairly; and

(e)    allotting to it an appropriate share of the Court’s resources, while taking into account the need to allot resources to other cases.

(3)    The Court shall seek to give effect to the overriding objective when it—

(a)    exercises any power given to it by this Part; or

(b)    interprets any Rule.

(4)    The parties must help the Court to further the overriding objective.

(5)    The Court shall further the overriding objective by actively managing cases.

(6)    Active case management includes—

(a)    encouraging the parties to co-operate with each other in the conduct of the proceedings;

(b)    encouraging the parties to settle their disputes through mediation, where appropriate;

(c)    identifying the issues at an early date;

(d)    regulating the extent of disclosure of documents and expert evidence so that they are proportionate to the issues in question;

(e)    helping the parties to settle the whole or part of the case;

(f)     fixing timetables or otherwise controlling the progress of the case;

(g)    making use of technology; and

(h)    giving directions to ensure that the trial of a case proceeds quickly and efficiently.”

18  In matters relating solely to children in proceedings where there is no divorce or where the parents have not been married, the court and the parties must take into account the same overriding objective which in private law proceedings includes the requirement to encourage “the parties to settle their disputes through mediation, where appropriate”.[4]

19  Stepping back and thinking about the importance of a final solution that will not fall apart, it can quickly be seen that any solution mutually agreed by the parties is likely to be a far better outcome. Should a court order suit or please one party, it will almost invariably not suit the other. The more likely scenario is that some aspects of the order will suit one party but different aspects suit the other, or, an entirely possible outcome, that nothing in the order will suit either, or both of them!

20  “Allowing” a court to resolve a dispute is exactly that—a choice, and a relinquishing of a considerable opportunity to mould the outcome to address one’s own position. A court can only make decisions based on the evidence before it and its view of the person giving the evidence. A further relevant point is that a court can only make orders which it is empowered to do. In the family context, a court may not be able to make an appropriate order even if that is what the parties would like, whereas in mediation such a constraint does not exist.

21  Accordingly, seeking a court resolution may be an uncertain process.

22  Mediation has a low profile, which is not helpful to those in personal turmoil as a result of family difficulties.

23  Formal family mediation provided by a fully trained mediation service has its own structure tailored very specifically for successful alternative dispute resolution in the family context. The core principles are—

(1)    The process is entirely voluntary; a party may withdraw at any time if he or she feels the process is not meeting his or her needs at that time. This also means that, subject to the other agreeing, the parties can return at any time.

(2)    This is a process of self determination – no terms can or will be forced on people if they are not in agreement. The process itself and the terms of any agreement are driven, and reached, by the parties themselves.

            However, if agreement is reached and both parties choose to have this converted into a binding court order they take the terms of the mediated agreement to their respective lawyers for this to be achieved.

(3)    Subject to the caveat that no confidentiality will attach to any disclosure about the wellbeing or safety of children or adults at risk, this is an entirely confidential process.

(4)    The mediator will not take sides and will ensure that both parties have enough time and space to say the things they want to say. The mediator will be and must remain impartial. It is an important part of the process that if at any time one of the parties feels that the mediator is not impartial, they will know, from the information provided to them at the outset and throughout the process, that they must address this with the mediator directly.

24  The mediator will be a fully trained mediator. He or she will not be an expert and will not provide legal or other advice. However, a mediator can and will provide relevant information. Mediators are drawn from all walks of life, but when mediating they will not be practising their other profession or providing advice. A mediator will form an impression of the circumstances of the parties but will always be impartial and ensure that the process is handled fairly. The mediator’s personal views will not be brought into the mediation, and are simply a part of that person’s make-up.

25  If a mediator identifies that there is a need for any advice or further information or a referral to another service, the mediator will say so and a decision will be made by the parties as to how they wish to proceed. Through his or her training, a mediator has knowledge of the range of possible court orders and will use that information to assist the parties. For example, the mediator will be able to explain about the valuation of pensions, property and other assets, the relevance of inherited assets, and the range of possible orders. The mediator will use this information to help the parties reach their own decision as to an appropriate settlement.

26  Some people who may be very keen to resolve the dispute may believe that family mediation is impossible due to the nature of their relationship with their former partner or spouse. Domestic abuse is an issue that every mediator is trained to recognize and to manage in the mediation setting. The mediator will obtain all the necessary information to decide if the process can be managed in a safe way. Mediators are very experienced in dealing with high levels of emotion and can arrange practical ways to ensure the ability of parties to undertake mediation in a safe way. Mediators will help a party who has experienced an abusive relationship to speak out, will ensure that the other party listens, and will assist the parties to say what they want or need to say. Only by having this opportunity can a person freely join in the discussion and make decisions for him or herself.

27  However, if the level of fear, or danger, is so high that a party cannot feel safe, or where there is a risk of harm to others, family mediation may well not be suitable. Warring parties should not be placed in a situation where their faith in the resolution process itself may be damaged.

28  Family mediation may not be suitable for other reasons such as mental incapacity or poor health. This is not a comprehensive list. Suitability for mediation is an assessment undertaken by the mediator at the first meeting with each party. Mediation can be halted at any time by a party or by the mediator should something occur rendering the process inappropriate.

29  Family mediation, unlike the court process, is as flexible as it needs to be. There may be only one session, or many. The length of each session will be governed by whether the parties want to continue, or want a break to reflect, or need to stop simply because it is very tiring. Sitting in a room with a former spouse or partner can be very demanding, emotionally and physically. The overall length of the process will be governed by the parties.

30  Family mediation can help to resolve disputes about children and/or financial arrangements, if both are involved this is referred to as “All Issues Mediation” or AIM. Wider family issues can also be suitable for mediation such as disputes between children and their parents, between siblings themselves, and issues about contact between minor children and their extended family.

31  In relation to financial matters, a procedure called financial disclosure is undertaken in exactly the same way as in the court process, so that any agreement is reached on a fully informed basis. If an agreement is reached the mediator will set out the terms in a document, a Memorandum of Understanding (MOU), which remains private and confidential to the parties. Should the matter not be compromised on the basis of the MOU and proceed to court, the MOU cannot be referred to. The parties are advised to take the MOU to their lawyers for advice. In contrast, the factual financial position is set out in other documents which are not confidential. Those documents are also seen by the lawyers who need this background information to provide their advice on the terms of the MOU and these may be referred to in any subsequent court proceedings.

Benefits of mediation

32  We hope that it can be seen that family mediation is a very valuable and effective alternative to court-based resolution of family disputes. This not only benefits the parties involved but has a wider social benefit in that it reduces the time and expense of providing court services. There are often other, hidden, community benefits in the saving of time and expense by health and welfare providers, and benefits to the education system through having fewer anxious children.

33  There are other well recognized, if hidden, benefits to the wider community of a successful mediation—

(1)    It contributes to more durable outcomes, generates greater mutual satisfaction and decreases the likelihood of negative or harmful outcomes such as the escalation of conflict.[5]

(2)    The evidence demonstrates that mediated settlements are longer lasting, and better protect the interests of children than those imposed by the court in an adversarial process. Furthermore, family mediation is usually less costly and encourages communication between the parties. Two key reasons for using family mediation are—

(a)    Client satisfaction. In their study of client satisfaction in mediated agreements, Ellis and Stuckless indicate that mediation clients are more satisfied with mediation than clients are with the processes of lawyer negotiation, court hearings and trials.[6] They are heard, understood and participate in a process that provides for fairer outcomes.

(b)    Benefits to children. The trend towards mediation stems in part from parental dissatisfaction with the adversarial approach to divorce. Numerous studies show that parents want to structure their own solutions that are beneficial to them and their children. Commonly parents feel that the use of the traditional court process escalates conflict and distrust.[7] With early intervention the families benefited from lower levels of conflict, greater paternal engagement and better outcomes. Families were more cooperative and less likely to need other costly services.[8] In terms of the impact on children, studies indicate a clear pattern of better adjustment for children with parents who cooperate and focus on their best interests.

34  Unless a family mediation service is able to secure the necessary government funding to operate in a sustainable way, none of the benefits referred to above will be realised, and mediation will be available only to those who can afford the fees of a private mediator. Instead, it is likely that the number of litigants in person appearing before the court will continue to rise, resulting in extra costs and delays. This scenario will inhibit the court from prioritising the cases which are not suited to mediation. The failure to provide an opportunity for parties to consider a non-adversarial alternative to a court hearing would be costly, both financially and in terms of the emotional resilience of the parties and their children.

State involvement

35  A consideration of the considerable benefits to participants and to Jersey brings us back to the question posed at the beginning of this article—“How should alternative dispute resolution be made available? Is this a state responsibility or purely a personal matter?”

36  Fortunately, this question has been answered because Jersey has already made the decision that the provision of a Family Mediation Service is so important that it cannot be left solely to a charitable organization. A working party sponsored by Relate was set up in 1999 with the remit to create a family mediation service to provide an alternative to a court resolution of family disputes. The Jersey Family Mediation Service was established as a charity. Due to various circumstances including issues concerning funding, the Service became dormant in early 2012. The charity grasped the opportunity to look in depth at the way a mediation service could be provided to the community. With generous financial assistance from the Government of Jersey, premises and procedures for the reinvigorated Service have been provided, and eight family mediators have been identified and trained. The new Service continues to be affiliated to the English National Family Mediation Service, which provided the training for Jersey’s new family mediators. The new Service is called “Family Mediation Jersey” (FMJ) and was launched in October 2013. Guernsey already has a healthy mediation service which started in 2009. The mediation service is part of the States of Guernsey Safeguarder Services which is a Court Advisory Service. Safeguarder Services ensures that there is a supply of trained mediators to enable the service to flourish. There is constant demand for the service although this fluctuates, as one might expect. The Guernsey experience shows a steady increase in use of the service. It is expected that the same pattern will be observed in Jersey.

The continuing role for family lawyers

37  One might think that family lawyers will become a dying breed. However, there are a number of situations where a family lawyer will continue to be indispensable. Family lawyers should continue to be the first port of call for advice by a client faced with the breakdown of a relationship or difficulties relating to children. Family lawyers may well provide information about Family Mediation and other forms of ADR, as well as providing legal advice in relation to the numerous issues surrounding the breakdown of a relationship.

38  Clients should be alert to the desirability of putting their affairs in order before commencing, or indeed during, a relationship. Such people will need legal advice on a range of financial and legal status issues. Financial considerations include cohabitation or pre-nuptial agreements, the joint ownership and/or occupation of property, and making wills, to name but a few. The continuing control of work and housing[9] brings additional difficulties, unique to the Island. The position of those clients without the necessary status to live in a former matrimonial home is often difficult.

39  As before, obtaining legal advice and/or putting agreements in place before a cohabitation commences or ends should be encouraged, particularly in the context of complex family relationships. As an example, a child might clearly expect to remain living with a step-parent, or parent’s partner, should his or her parent die whilst the child is a minor, there may be nobody with legal responsibility for that child.

40  Clearly, helping to resolve such situations is part of the role of the family lawyer.

41  There will always be clients needing advice and representation who have no choice but to use the court system to resolve their dispute because ADR is for one reason or another inappropriate. Where the parties’ financial affairs are very complicated with, perhaps, trust or company interests, or where there are difficult valuation issues, or perhaps where one party does not live in Jersey, mediation may not be suitable and family lawyers will continue to play their traditional rôle.

42  There will also be clients who have already reached agreement and who need assistance merely to finalise the terms of that agreement.

43  The most obvious continuing need for family lawyers, in the context of family mediation, is to complement the mediation process by providing advice and guidance and in converting the terms of a mediated agreement into a form acceptable to a court to obtain an order by consent. Clearly family mediators cannot replace family lawyers. Family mediators cannot facilitate an agreement to the point at which the terms become binding on the parties. Where divorce or dissolution proceedings are required, it is likely that a family lawyer will be used, as for a range of other court proceedings such as public law matters.[10] They will almost inevitably be involved in disputes arising from a breached court order, or a broken agreement.

44  The authors subscribe wholeheartedly to the philosophy of family mediation for resolving disputes in the family arena, to complement, but not to replace, the traditional rôle of the family lawyer.

Marian Whittaker was called to the Jersey Bar in 1977 and has spent many years in general practice but in more recent years has specialized in family law and private client work. She was Chairman of the Jersey Family Law Association for many years during which time she was involved in the review of family legislation and court procedure on its behalf. She is a partner in LWR Law.

Alison Brown qualified as an English solicitor in 1980 and has practised family law since then. Since 2004 she has worked in Jersey specializing in the law of children and trained as a family mediator in 2013. She is an Associate at LWR Law.