23 March 2018
I made my first Freedom of Information Act request a few weeks ago inspired by an article I had read in the Law Society Gazette. The article was written by a fellow family lawyer and outlined her ‘proportionality campaign’. The principle that cases should be dealt with ‘justly’ and managed to save expense where practicable is already embedded in the Family Procedure Rules. However, there is no point at which costs are formally measured against the value of the assets in dispute.
What would family cases look like if a proportionality rule was applied in some way requiring the legal costs be proportionate to the value of the case? It is hardly realistic to suggest that parties should lose their legal representation and instead proceed as litigants in person when costs reach a certain level. But what about an automatic referral at a certain point to mediation? This is what Mary Banham-Hall suggests.
At the moment, in order for a separating husband or wife to start financial proceedings, they need first to have attended a Mediation Information and Assessment Meeting (‘MIAM’) unless they can claim an exemption (for example in cases of domestic violence). At a MIAM a mediator will explain how mediation works and discuss whether or not mediation is right for the case and for the family in question.
However, in spite of this hurdle having been put in place at the doors of the court, it seems that all too often it is being bypassed. The Ministry of Justice’s letter to me explains that even the system put in place to flag whether or not a MIAM was attended or an exemption claimed is not used effectively. Out of over 1,800 applications made at the Central Family Court in London, only 1,400 were flagged. Out of 7,600 applications made at the Bury St Edmunds Court Centre, only 4,900 were flagged. But what is even more concerning is that of the 4,900 flagged applications at the Bury St Edmunds Court Centre, in over half of the cases no MIAM was attended. In the Central Family Court the figures are marginally better at one-third but it is clear that the current system is simply not working.
Would the position be better if there was an automatic referral to mediation part-way through the case? It might help but I do not think that it would provide the answer. Mediation is often used in the civil litigation arena but for some it is simply seen as a step to be taken on the way to trial, after the letter before action. In order for real progress to be made in mediation, the parties need to be motivated and invested in finding their own solution to their dispute and both parties need to want to find a solution. Costs may be a driver in some cases but truly to work the parties need to accept that they may never agree on the facts, and they may never agree on the technical arguments being put forward, but they can agree that it is in everyone’s interests to sort things out directly. In what case would there be a better argument for this than in a family case where couples will still need to co-parent their children and will inevitably continue to meet as part of the family?
There needs to be a cultural change driven in part by procedural change, perhaps along the lines that Mary Banham-Hall suggests, but also driven by a change in the approach from the lawyers. We all need to be giving our clients the information they need in order to make these choices and empowering them and supporting them to make different choices to following the traditional court process.
Separately, I wrote to my MP last week asking for a commitment to the reform of the Family Justice System in line with Resolution’s campaign. Among other things, the campaign calls for an end to the fault-based divorce system. Whilst the next government may have bigger fish to fry in dealing with Brexit, family justice has been neglected for far too long and it now needs to be a priority.