July 2007 NEWSLETTER - click here to download document
LFMS July 2007 Newsletter
The Impact or Big-Money Cases on Mediation (Suzanne Kingston, Family Law Journal, May 2007)
In the wake of recent decisions such as Charman v Charman, London is being hailed as the “divorce capital of the world for aspiring wives,” begging the question, ‘Is England a pushover when it comes to big money settlements?’
The Charman case, awarding a record £48 million to the wife of a wealthy insurance magnate, is the latest in a string of cases where the courts have been criticized for awarding wives too big a slice of the matrimonial pie. In January, Resolution hosted a debate entitled ‘Do wives get too much on divorce in England?’ The majority of family practitioners present felt that this was often the case.
The current status of the law, in particular s.25 of the Matrimonial Causes Act 1973, gives judges a broad discretion as to what they decide to award the claimant spouse, depending on a range of factors. Although this means cases can be dealt with on their particular facts, it also means practitioners cannot advise their clients as to the likely outcome of a case with any certainty.
So how will this affect mediation? It is likely that until such certainty can be provided (the judges in the Charman case have encouraged reform in this area and lent their support to allowing pre-nuptial agreements to become enforceable), those who are forced to pursue proceedings in England will increasingly look at alternative dispute resolution, in particular mediation and collaborative law. Ironically, whereas England’s rules on asset division on separation are at variance with many other EU jurisdictions, ADR may be one area where the EU seeks standardisation, with the introduction of a new directive on ADR in civil and commercial matters. We will keep you posted on any developments.
Lord Chancellor’s ‘Breakthrough’ Encourages Mediation (Family Law Week, 21.5.07)
Lord Falconer, the Lord Chancellor and Secretary of State for Justice, has announced that they are implementing commitments to simplify and speed up the way in which the courts deliver services to the public.
Of the eight pledges included in the initiative, it is interesting to note that one of these is to encourage more families to resolve issues themselves through providing in-court conciliation or directing parties to mediation where it is appropriate and safe to do so.
Another pledge of interest to family practitioners is to give greater priority and urgency to public law cases involving issues such as whether children should be taken into care with a view to ensuring the matter is resolved in less than the 40 weeks stated in the judicial protocol, or such later time as the judge or magistrate deems appropriate in the circumstances.
An important factor in the initiative is that the pledges have come directly from the court staff themselves and the Lord Chancellor was keen to emphasise that this was reform from the bottom-up rather than the top-down in a real effort to improve the court service for all those who use it.
Mediation – Does it Provide Enough Legal and Financial Advice? (From Jordan’s Family Law Journal, January 2007, Susan Tilley)
A recent study carried out at Birkbeck college and the Institute of Family Therapy showed that women can be disadvantaged by the mediation process if the mediator is unable to provide adequate information and little or no support is given by the legal adviser.
Mediators are not supposed to advise but they also cannot rely on the parties receiving information from their solicitors. There is a fear that women, especially those in receipt of public funding, do not have access o good quality legal advice. The study (of five women) threw up concerns about the information provided during the mediation process. For example, only 3 of the 5 women were happy with the information and 2 of those did not understand their husband’s pension schemes or that a cash equivalent transfer value was likely to be an undervalue, which could lead to women giving up an interest in an asset which is more valuable than they realize. One interviewee was unhappy with the mediator’s knowledge of property law, alleging that they ignored issues the solicitor said were relevant.
This is especially worrying if we take into account that many people do not understand their known financial affairs, especially when it comes to pensions and insurance policies. The stress of the situation can impact on the capacity to absorb information and people can have selective hearing and remember only a limited amount of what has been said during the sessions, for example, one woman understood she would come away with 30% of the assets when it is far more likely the mediator said 70/30 in her favour, given both children lived with her. This misunderstanding affected her whole approach to mediation.
The intelligence and personality if the party can also be relevant and emotional intelligence can also impact on the process, where emotional intelligence can be interpreted as “managing feelings so that they are expressed appropriately and effectively, enabling people to work together smoothly towards their common goals.” (Daniel Goleman, author of Working With Emotional Intelligence). Everyone has different strengths and weaknesses and deals with things in different ways, although it is said women are more aware of their emotions, show more empathy and are more adept interpersonally.
Another concern is that after the final mediation session, in two cases the ‘agreements’ had not been finalized due to outstanding issues, e.g. about life insurance or health cover. It seems that in one of these cases, the mediator had to draw sessions to an end because nine mediation sessions had taken place and the woman was publicly funded. Outcome measures are seen by the Legal Services Commission in terms of settlement, and because there is a limit to the number of sessions that can be undertaken if one or both or the parties are publicly funded, this inevitably has an effect on the process. The average number of sessions of those interviewed was only three.
A survey of family mediators practicing in the UK in 2001 showed that they were mainly female, aged 45 or over and came from a background of mental health or one of the helping professions. A considerable number of mediators have grappled with pension sharing since December 2000 and have found it difficult to understand complicated schemes let alone provide adequate information to their mediation clients. It is necessary o be aware when it is appropriate to seek outside help. Pension expert reports should be more widely used and mediators should help the couple frame the questions that need to be asked and ensure the report is jointly commissioned. Otherwise, the consequences of a mediator’s lack of experience in complicated financial matters could lead to settlements which are tax inefficient or assets being valued incorrectly. Even referring a couple back to their solicitors is little use if, at the next session, the mediator does not understand whether the advice given is correct. One suggestion is to involve the legal consultant more, e.g. by having them check all the Memoranda of Understanding, which would pick up on any mistakes at an early stage.
The study has raised the question of whether compulsory training for all issues mediators in legal and financial issues should be introduced. All mediators who are members of the UK College of Family Mediators have to obtain 7 hours of CPD points each year but there is currently no recommendation that those hours should be on legal and financial issues for mediators dealing with those areas. There is little legal input in the core training programmes and it is down to the individual mediator to keep up to date with changes in the law and their effects, such as the far-reaching consequences of cases such as Miller v Miller; McFarlane v McFarlane.
Given that the uptake for mediation remains low in England and Wales with people in general preferring to instruct a solicitor to represent their interests, the pressure is on for mediators to prove their worth, retain their funding and increase their workloads. Regular training on legal and financial matters could help to improve the status of mediators if the UK College of Family Mediators made it compulsory for a certain number of points to be earned in this way each year.
Calls for the Government to Protect Children from Divorce Harm (The Times, 12.06.07, Rosemary Bennett)
Earlier this month a letter was written to the editor of The Times, calling for more to be done to help children recover from the emotional and psychological consequences of divorce. It can be seen from the recent press attention on financial settlements (such as in the recent case of Charman) and property rights for cohabiting couples that in the event of parental separation, the nation’s focus is on making practical arrangements for the future.
A letter signed by key figures such as Resolution, Women’s Aid, a whole host of parenting groups as well as ethnic minority groups such as Asian Family Counselling Service and Jewish Unity for Multiple Parenting bemoaned the fact that parents had little access to support which could help them resolve their difficulties and reduce conflict which could prevent harm to children both before and after a split. As Janet Allbeson from One Parent Families points out, unless conflict is addressed, practical arrangements often fall by the wayside anyway.
Although the letter recognized that individual government departments have introduced initiatives over the years to reduce conflict within warring families (e.g. the Ministry of Justice has piloted schemes to help parents remain civil with one another if rows over finance and contact reach court), the lack of a cross-departmental approach between government departments was criticized and a new interministerial group was proposed as an essential source of early, child-centred support and guidance to separating parents in order to protect children from the inevitable emotional fallout of relationship breakdown.
Cohabitees and the Rights Reserved for Spouses (The Times, 12.06.07, Libby Purves)
The Law Commission has recently announced plans to give cohabiting couples similar rights to married ones. This will come as welcome news to many of the millions of couples who choose to live together without tying the knot, many still believing in the myth of the ‘common law spouse.’ But there are those who feel that if you are not willing to undertake the extra commitment that marriage brings then equally you should not be entitled to stand under the umbrella of its protection in the event of a split.
Since the Civil Partnership Act came into force there has been renewed pressure to increase the rights of cohabiting couples so that they will be entitled to apply for lump-sum settlements, shares of property, maintenance and pensions upon separation, rights previously reserved for those with a ring on their finger.
This represents an overhaul of this area of law which many see as fair and long overdue but which is also opposed by those who feel it undermines the institution of marriage and tailors the law to those cohabitees who may have jointly decided not to marry but who have not extended their decision-making to address the question of what should happen in the event of a breakdown; as one leading journalist says “if you hippyishly reject marriage because “it’s just a piece of paper”, don’t expect the nanny state to provide you with an equally safe piece”.
