I write this at the end of the first week of the third lockdown. Before Christmas people appeared exhausted and many were disillusioned. Many still are, and there is a long way to go. But, as the new variant wreaks its havoc and adds yet further hardship, I also sense that there are two other developing phenomena. First, hope – that concept that lay in Pandora’s box alongside chaos. The arrival of the new vaccine, the signs that things are beginning to be resolved on the other side of the Atlantic and the approach of the annual rebirth of Spring are all major contributors to that. Second, a determination that, when the world does open up again, we will put right some of the things were going wrong – that we will change our ways. As the poet put it, for some the past ten months have been the Great Realisation. We have seen not just the extent to which societies can divide themselves but, also, how easy it is for those divisions to be driven wider through power struggles.
So, what better time could there be to re-visit our approach to family separation? Is this not a time when mediation should re-energise itself and start to play a much bigger role? I believe that it is.
I don’t think that it is remotely surprising that there were about 200 more private law applications received in July 2020 than there were in January 2020. When families are in lockdown, there is an immense strain on them, and it was inevitable that the pressure on some would be too great. And with face-to-face counselling and mediation services being more limited, people have turned to the courts. Even when lockdown ends, the social and familial consequences will go on for much longer and I will be surprised if there is any significant reduction in the number of separations, at least for some time.
What did surprise me was when I was told, authoritatively, that 40% of separating couples are now coming before the court to litigate. How can that have happened?
And so, inevitably, the Family courts, certainly in this area, have been really struggling with the workload. As a Designated Family Judge, I am all too aware of the demands on the court lists. My own are full now until the middle of August – seven months ahead. As new cases come in, we now have to fit them around the other work that is already crammed into our diaries. And, I also say, for every hour spent in court, a judge spends at least an hour reading in preparation. Since preparation cannot be done during the day (because we are in court), we have to do it at night and over weekends. We are reminded of the importance of our welfare but what should we do when our lists are full and there is an emergency hearing? We would not dream of declining to hear, for instance, an urgent injunction application or an emergency protection application.
And it is easy for a judge to write about the pressure on the judiciary. But what about the court staff, Cafcass, barristers, solicitors and the many other groups of court users. The strain on them is at least as great as those on judges. And their jobs, I always think, are certainly as important as mine. I may make the decisions, but they tee me up to make them – they give me the information I need to get (or, at least, attempt to get) the right outcome. What about the litigants themselves, who come into a system, often without representation, at a time when they are probably going through the worst times of their lives? How must they feel when they find themselves caught up in a system under so much pressure?
Rightly, the expectations on the court remain as they always have been. That is that any dispute that people want to bring before the court will be resolved with full attention being paid to it so that a just result might be achieved. But, as I said in a recent judgment that was not without its controversy, courts are being expected by some to micromanage the details of separation and to witness thousands of pounds, huge distress and damaging acrimony being invested in issues that should not require litigation. And the more the court micromanages cases of that nature, the less opportunity it has to hear other cases.
However, in reality, there is nothing new about much of that. There has just been a gradual slide to the current position. And since this is all too obvious and observable, why has mediation not taken off more? It is not necessary to call on Peter Cook and Dudley Moore to hear it said: ‘It makes sense, dun it.’
The benefits of mediation are, also, all too obvious. People, who presumably once loved each other are not pitched against each other in court. The playing field is level and is kept level by the mediator; there is none of the imbalance of one party having legal representation and the other not, as happens so frequently in private law applications. Issues are dealt with openly and face to face, rather than through court documentation solicitors’ letters and, in a contested case, cross examination and speeches. The mediation system works at the pace and chosen expense of the couple, not the court rules of procedure. Mediation can be tailored to the needs of the parties – it is free dancing rather than ballroom dancing to a set piece. It avoids the uncertainty of litigation and the demeaning experience of putting private matters in the hands of a stranger; the outcome of litigation is never guaranteed, and one judge may decide a case in a way that another would not. And, most importantly, the outcome belongs to the parties – it is their agreement rather than a solution imposed by the likes of me.
So, why has it not taken off more? As a trainee barrister I was advised: never bore or insult your audience. Wise words and I hope that I am not about to show that I have forgotten them. But, presumptuously, I would like to suggest four reasons that have contributed to this:
- The MIAM has not worked in its current form. Parties and some lawyers have become alive to the ways in which it can be by-passed. So, people are not getting channelled into mediation.
- It is often in the very early stages of separation that the need to resolve issues arises. It is at that point that the parties are most hurt and, often, angry. That is when immediate applications are made for injunctions, interim contact orders, maintenance pending suit. People do not want to spend time in the company of the other / ex-partner and want an immediate answer to their problems. They see the court as the means of providing them with what they want.
- Many people do not understand what mediation is or how to go about finding a mediator. They do understand the court system and have lawyers waiting to help them into and through it.
- Once parties are involved in litigation, they get swept along by it. They file separate statements expressing their grievances against the other. Usually, they try to validate themselves on paper at the expense of the other party. They may have lawyers who listen to their separate grievances and then advocate them. So, by then, it is much more difficult to divert them into mediation.
So, what can mediators do? Once again, I would like to venture four suggestions:
- Unite themselves. When I started as a mediator, many years ago, there were two main mediation organisations between whom there was very little dialogue. Since then, all the main mediation organisations have worked together effectively under the Family Mediation Council banner, but they still continue to operate as five different representative bodies. Solicitors and barristers all have their professional (and single) organisations that are able to promote their work very effectively. Would not mediation benefit from the same?
- Inform the public more effectively about the work that they do and how the public should access it. On what I see, there is still a big gap in the understanding that many have about mediation, the wide range of issues that it can cover and the benefits that it confers. Family Mediation Week is a good starting point but much more can be done.
- Engage more with the local legal communities. In my role I have met with mediators from time to time and tried to encourage them to get more involved as an active force in the local community and with the court. Nothing has happened. Meetings between the court and mediators to discuss mediation have only happened when I have organised them. In the end I just gave up.
- Hold events to highlight the work of mediators. I have suggested performing plays (and have written plays for this purpose), holding debates (as we have done on other issues in Bristol), holding conferences and workshops and means of getting the local community involved and informed. But what about speaking in schools, colleges and universities. Or attending community events. Lawyers do.
Well, I hope that I have not gone too far in making those suggestions. I remain committed to the view that, in most instances, mediation creates far better solutions than court-imposed ones. Whilst I remain in my current role, my door is always open to mediators who want to discuss how we might take mediation further in the Family courts where I work.
9th January 2021.