Family mediation needs more support from government

Monday 25 November 2013 marked the beginning of Resolution's Family Dispute Resolution Week, an initiative aimed at raising awareness of the alternatives to going to court for separating couples and their families.

Ironically the previous working day had seen the nadir in the six-and-a-half-year litigation between Michelle and Scot Young with the final judgment of Mr Justice Moor. During that time, Mrs Young had spent an estimated £6.4m in legal costs; there had been 65 preliminary hearings taking 20 days of court time; and Scot Young had twice been found to be in contempt of court and had been sentenced to a six months' prison term for repeatedly refusing to provide full disclosure of his financial position.

Michelle Young sought an award of £400m. Scot Young maintained he had no assets, just debts of £28m. Mr Justice Moor concluded that Scot Young had had assets worth £40m in 2006 but even he had to concede that he had no idea what had happened to those assets in the following seven years. He ordered that Michelle Young should receive £20m, although the tenor of the judgment suggests that, being sanguine, he doubts if she will ever receive very much, if anything.

Bad example

This litigation was described by the judge as 'about as bad an example of how not to litigate as any I have ever encountered' and raises the question about what has happened over recent years to mediation '“ and could it have saved the Young family from the disaster they have lived through?

Mediation has been on the scene since the 1970s, but it is still not seen as a mainstream 'alternative' dispute resolution method, suitable just for the minority. We need to drop the use of that word 'alternative' and think about 'appropriate dispute resolution'. We need as lawyers, and family lawyers in particular, to ask ourselves in every case what is the most 'appropriate' way of helping our clients resolve their problems. Litigation is just one method and should always be the last resort.

Between the various protocols, practice codes and family procedure rules, you might think there is enough encouragement in favour of mediation already.

Mediation needs to be embedded in our legal culture from the outset. We teach young lawyers to litigate. We do not teach them how to mediate or to collaborate. That only comes later by which time litigation is embedded.

Game for five

Lawyers and mediators can work together well as part of a team to help a family find a way forward. That process has been described as a 'game for five': the couple, their lawyers and the mediator. Even after all these years there is still tension between some lawyers and mediators, each vying to be the first port of call and seeing the other as a rival.

Support is needed from the judiciary. Rarely do judges use the full range of their case management powers. One of the innovations of the Family Procedure Rules when they were introduced in 2010 was the power of the court to adjourn proceedings to enable parties to obtain information and advice about 'alternative' dispute resolution; that word again. Experience suggests that power is rarely if ever used.

In April 2011, that power was supplemented by the government when it introduced mediation information and assessment meetings (MIAMs). These were to be obligatory for those wishing to start proceedings about their children or about their finances.

Confusion has reigned ever since. Not only are the forms nearly unintelligible, but the sanctions which were supposed to be there if clients did not attend a MIAM are hardly ever enforced. It was supposed to be impossible to issue proceedings in the absence of having attended a MIAM, unless an exemption applied, and if proceedings were issued nonetheless costs penalties were to follow; in practice, they do not.

Could mediation have helped the Youngs? Possibly, not at least in the latter stages. There was too much distrust, too little openness and most of all too much complexity. Mr Justice Moor described the case as 'one of the most complicated financial remedy cases ever seen in these courts'. Even so, first class mediation could have helped dispel some myths, simplify and clarify the issues and help the couple focus on finding a solution which was fair and which would have saved them and their children enormous cost and suffering.

Mediation, then, along with collaboration, has a major role to play if only lawyers and judges would let it. SJ