On 6 April 2011 rules came into force requiring divorcing couples to attend an information meeting  about mediation and other alternatives to court action -before issuing financial remedy or private law children proceedings.

To what extent have they been successful in diverting family cases away from the courts? Well, the picture emerging appears unclear.

Resolution commissioned a survey, which found that:

• Court staff have not regarded it as mandatory that a party issuing an application should show evidence of having attended a MIAM. Only 56% of respondents to the survey said that courts asked about this when they applied to issue. One snapshot showed that in the Principal Registry in London, only 20% of applications were accompanied by evidence of attendance at a MIAM.
• Rule 3.2 states that judges “must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate”. Yet 78% of respondents said that their local courts hadn’t asked about this.
• 20%  of solicitors who responded had only referred 0-10 % of their clients to a MIAM, whilst 30%  said they had referred the majority of their clients (91-100%) to a MIAM.
• 89% of respondents reported that 0- 10% of their clients had self-referred to a MIAM.
• It appears that courts in different regions are interpreting the rules in different ways.

Respondents’ feelings about MIAMs were clearly mixed. Some reported a higher level of mediation as a result of increased awareness. Many made the point that mediator or collaborative lawyers spot the cases needing a judge and consider a MIAM to be a fruitless additional hurdle. Others spoke of concerns about the cost of  a MIAM.

The Ministry of Justice has seen an increase in MIAMs compared with assessment meetings. Judge’s statistics are being checked to see if there is a decrease in applications coming before courts, and at what stage they are being compromised. In the Principal Registry, a 6 per cent drop in private law cases has been reported since April 2011.

The blogger has found MIAMs to be really useful on two levels. In some cases they have resolved all or some of the issues without the need for a court decision. In others they have helped to ease the adversarial nature of subsequent proceedings (especially in children cases), and softened the parties’ expectations of the court process.

Within a decade, the culture of family litigation is likely to change. MIAMs are starting to play a part in this. In almost every case there is something that can be agreed, and reaching some consensus oils the wheels for more collaboration between warring parties.

With thanks to Manches LLP and The Times Online

Family practitioners take note- Stephen Alderson has delivered another very sensible letter concerning orders in family cases. Knowing you, as only the DS Blogger does, many will simply have clicked on his message and told yourselves that you will read it later. And who can blame you. You are too busy with important matters.

In the spirit of attending to your needs, saving you time, and making things simple, the blogger will tell you what you need to know.

First, Philip Waller, senior DJ at the Family Division Principal Registry has been chatting with his fellow DJ’s around the block. They (including Stephen Alderson) are really concerned about PD 33A. It is to do with ‘undertakings’, and the attachment of a ‘disobedience’ warning.

Now that we barristers have the job of drawing up the orders, we need to get them right. In summary, whenever you thought about including the word ‘undertaking’ in your order, forget it unless you want the offender locked up or flailed. Instead, try the word ‘agreement’ or ‘agree’. It is perfect in a recital,  and carries with it the clear intention of the parties. This way, the judge does not have to threaten imprisonment  for any transgressor. They are happy; and you have shown yourself to be an intelligent drafts-person. DJ Stephen Alderson warns “be prepared to answer the question as to why you need a penal notice”.

Interestingly, the point goes a step further than first appears. Is this another example of the ‘modification’ of family proceedings, away from ‘the order of the court’ to ‘the agreement of the parties’? The blogger thinks it is, and applauds the move. Before too long, court orders will comprise a recital of agreements rather than a record of findings and requirements.

Perhaps another reason to get a mediation qualification?

Photo by graphixshare

District Judge Stephen Alderson, in an astute pincer move with H H Judge Moir, is tasked to tidy up sloppy family proceedings. You now have the letter. “Stringent cost cutting”, “lean practices”, ”reduced staffing levels”, “scrutiny of systems and working practices”,  FPR r1.4(2)e, email communication, 48 hr and 7 day rules for draft orders, lodging times for Financial Remedy proceedings. Well worth a read, not least to save you and your indemnity insurance big bills.

Yes, costs sanctions have been threatened before, but in a climate where the Bar elegantly serviced the bench, and where government cuts did not challenge the viability of the provision of services and judicial office. Now, the invisible fingers of the Ministry of Justice twist the screws and determine the judge’s costs orders.

The rules with regard to draft orders are probably the most challenging, taking into account that tomorrow we have another case and have forgotten what happened the day before. Leave your draft for over two days and face execution, it seems. These appear to be the time scales:

• Except for final orders in Financial Remedies and interim DJ orders: submit your draft within 48 hrs of leaving court;
• Interim DJ orders: don’t draft unless asked;
• Final Financial Remedy orders: by 4.0pm on the 7th day after the hearing;
• All orders in ‘Word’ by email to the court.

The family finance practitioners won’t be surprised by their new guidance; after all, they have been historically subjected to various degrees of rigour by the FPR. But now comes the lash – to be administered if you don’t comply. In a moment of characteristic generosity, DJ Stephen Alderson relents to allow filing of documents required for the FDR no later than 2 (instead of 7) days before the hearing, but observes that this concession will not extend to final hearings, where final positions must be filed no later than 14 and 7 days before the hearing. This blogger is convinced that some members of the bar will in time face costs that eclipse their circuit wine bills.

Whether as reminders or sea changes, the directions serve to show the future landscape – leaner, tighter, sharper, more competitive, more accountable. The role of barrister is no longer a ‘gentleman’s’ or ‘gentlewoman’s’ profession. We are in business, with cost saving ethos.

For 2012, don’t forget the new rule 206 of the Bar’s Code of Practice. Notify the BSB of your desire to continue to practice by 31 March 2012, and then annually; or take up gardening.

A number of family law practitioners have been asking me about the future of mediation, in particular, family mediation. If you are contemplating undertaking training, it is an important question, and worthy of a measured answer.

I came to family mediation by an unconvential route. Eleven years ago, training as a commercial mediator, I had little expectation then that family law would reveal such fertile acres for the family facilitator – it was inconceivable that mediation would be more than a sticking plaster for fractured families. Part III of the Family Law Act 1996 was still-born and quickly to be buried three years later. But Woolf’s Civil Procedure Rules in 1999 and later the current Family Procedure Rules were to change all that.

I envisage that within the next few years there will be a massive revolution in the way in which private law family disputes are managed.

Most district judges (rightly or not) no longer support the traditional ‘adversarial approach’ to resolving residence, contact and specific issue matters. Advocates schooled in examination, cross examination and re examination are dinosaurs in the district judge’s lounge. Less time is spent looking at what is ‘wrong’ and more time examining the ways to fix it.

Private family law is all to do with ‘problem solving’. Rather than seeing themselves simply as ‘reporters’, CAFCASS are placing considerable focus on both facilitation meetings (where the CAFCASS officer mediates the dispute) and family group conferencing (where the parties themselves forge an outcome).

The way forward will probably be a hybrid of both approaches. Many cases of family conflict do not lend themselves to round table discussions, and where there has been a history of domestic conflict or violence, family meetings are fraught with danger. But I come across few private law family cases where some element of facilitation would not have improved family functioning; and I encounter a surprising volume of instances where it can actually problem solve the main issues.

So, the courts want to know less about what is wrong – or indeed how to fix it; but expect the family court support practitioners to do the fixing. No, we do not need psychological profiling of parents – we need the application of simple remedial skills of the mediator to bring about changes in family functioning.

Where does that leave us as a profession? Well, certainly not litigating conflict in private law family disputes. First, the judge’s don’t want it; second, the government won’t pay for it; and third, the changes in expectation of both process and professional intervention will not support it. Yes, we are to be mediators, whether we like it or not. I for one, like it and see it as a treasured skill leading to a rich seam of professional satisfaction.