Revision notes on the use of Alternative Dispute Resolution in Family Law.
Includes an explanation of the rise of ADR and different forms of ADR, family justice review recommendations and a lot of evaluative points which are helpful for exam and essay questions.
These notes for used for final yea...
ADR IN FAMILY LAW
The Rise of ADR
• Previously an emphasis on saving marriages – e.g. s3 Divorce Reform Act
1969 required solicitors to certify whether or not they have discussed the
possibility of reconciliation with their clients and had offered to refer them to
counselling
• Rise in divorce following WW2 – change in societal attitudes
• Attention shifted in 1970’s to conciliation – rather than concentrating on trying
to save marriages, reformers became concerned with facilitating the
settlement of disputes with as little conflict as possible
• Now – s1 FLR 1996 – ‘the court and any other person, in exercising functions
under or in consequence of s22, shall have regard to the following principles;
(a) That the institution of marriage is to be supported;
(b) That the parties to marriage which may have broken down are to be
encouraged to take all practicable steps, whether by marriage counselling
or otherwise, to save the marriage
• Funding for marriage support services – s22 FLA – ‘the secretary of state
may, with the approval of the treasury, make grants in connection with –
(a) The provision of marriage support services;
(b) Research into the causes of martial breakdown;
(c) Research into ways of preventing marital breakdown
Family Justice Review Recommendations
• Online information hub
• If parents/spouses/civil partners wish to go to court, must first be assessed by
a mediator
• Mediation and collaborative law not compulsory but assessment by mediator
is compulsory
• Would apply to disputes about children and about finances/property
Evaluation Points from Family Justice Review
• More support for separating parents could reduce the number of cases
reaching court and reduce the negative impact of separation on children –
However, there is currently a lack of evidence as to which early interventions
are most effective
• House of Commons Justice Committee 2011 – 1 in 10 separating parents
resolve their disputes in court. The evidence we received is that many
separating parents have multiple problems, so they are unlikely to be diverted
from court (e.g. contact issues)
Also, there are many safeguarding issues that should not be diverted from
court
• Committee 2011 continued – the interim report is walking a fine line between
strongly encouraging the use of mediation and making it compulsory for those
who do not qualify for an exemption. Given the mixed evidence around the
, effectiveness of mediation, especially in difficult cases, we cannot support it
being made compulsory.
We call on the family justice panel to clarify that while attendance at
information meeting or assessment for mediation session and a separated
parenting programme should be compulsory (with some limited exceptions) all
parents should be free to apply to the court after those have taken place
Mediation
• Intended to facilitate joint decision-making by parties
• The College of Mediators was formed to validate professional standards
• Mediators are generally professionals with counselling, social work or legal
backgrounds
• Walker et al – ‘family mediation is a process in which an impartial 3rd person,
the mediator, assists couples considering separation or divorce to make
arrangements, to communicate better, to reduce conflict between them, and
to reach their own agreed joint decisions’
• Parkinson emphasised that agreements are not binding – ‘the memorandum
of understanding drawn up by a mediator at the conclusion of a mediation
sets out proposed terms of settlement that can be confirmed by legal advisors
in open correspondence, legally binding agreement or consent order’
• Mediation differs from arbitration where the final decision is made by the
arbitrator and is legally binding
MIAM
• Family Mediation Information and Assessment Meetings
• S10(1) Children and Families Act 2014 – Before making a relevant family
application, a person must attend a family mediation information and
assessment meeting
• Applies to privately and publicly funded
• Applicant must meet with mediator to consider suitability of mediation (MIAM)
unless exception applies
• Respondent is expected to attend
• Court can adjourn proceedings for purpose of attendance at a MIAM
• Attendance at a MIAM provides an opportunity for the parties to a dispute to
receive information about the process of mediation and to understand the
benefits it can offer as a way to resolve disputes – at the meeting a trained
mediator will discuss with the parties the nature of their dispute and will
explore with them whether mediation would be a suitable way to resolve the
issues on which there is disagreement
• Attendance is not required where;
(a) Where the mediator considers the case unsuitable because the other party
refuses the attend a meeting
(b) Where the application is made without notice
(c) Where social services are involves – child protection
(d) There is evidence of domestic violence
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