Mediation in Private Family Law Disputes: An Analysis of Effectiveness and Suitability, Slides of Family Law

Download Mediation in Private Family Law Disputes: An Analysis of Effectiveness and Suitability and more Slides Family Law in PDF only on Docsity!

Briefing Paper

& Report on Key Findings

Anne Barlow, Rosemary Hunter, Janet Smithson &

Jan Ewing

Acknowledgments

The authors would like to thank the parties and practitioners who contributed to the project and

without whom the study would not have been possible. In addition, they would like express their

gratitude for the invaluable work of the Advisory Group who gave their time and expertise to help

guide the project. Last but not least, our thanks go to the other members of the Research Team for

helping to bring the project to fruition.

Advisory Group

James Carroll – Solicitor and Law Society Family Law Committee member

Lester Coleman & Mariya Stoylova – One Plus One

Sarah Lloyd – Former ADR Co-ordinator, Resolution, Chair Family Mediation Council, Collaborative

Lawyer and Mediator

Mavis Maclean – Oxford Centre for Family, Law and Policy and Ministry of Justice research

consultant

Ashish Patel – Senior Researcher, Ministry of Justice, formerly Legal Services Research Centre.

Janet Reibstein - Psychologist and Relationship Specialist, University of Exeter.

Jane Robey – CEO National Family Mediation

Beverley Sayers – FMA Mediator, Resolution member and Former Chair of the Family Justice

Council’s Alternative Dispute Resolution Committee

Research Team

Co-Investigators – Anne Barlow, University of Exeter; Rosemary Hunter, University of Kent; Janet

Smithson, University of Exeter

Research Associates – Charlotte Bishop, University of Exeter; Jan Ewing, University of Kent; Kate

Getliffe, University of Exeter; Paulette Morris, University of Exeter

Phase 1 – To explore questions on Awareness and Experience of FDRs in England and Wales, we conducted a (quantitative) nationally representative study using a structured questionnaire as part of the TNS-BMRB Omnibus survey. This comprised 2974 respondents and was completed in January 2012. We asked further questions focused on Experience of FDRs of those Omnibus respondents who had been divorced or separated between 1996-2011 (n=288), including where appropriate those in the process of separation (total n=315). We also supplemented our sample by asking the same Awareness questions as part of the Civil and Social Justice Panel Survey (CSJPS) (3700 respondents) in Spring 2012. This is a national sample of people who are regularly surveyed on legal issues. A summary of our Phase 1 findings have been published (Barlow et al, 2013). We used both national surveys to recruit participants to our second phase.

Phase 2 – Here we used qualitative research interviews (telephone or face to face) to gain further insights into the three FDR processes and understandings and experiences of these from the party and practitioner perspectives. Interviews were conducted between 2011 and 2013. Our party sample comprised 96 parties (45 men & 51 women) who had experienced one or more FDRs since 1996. These were recruited in part from the national surveys and in part from referrals from agencies and practitioners around the country to whom we advertised the project. 56 had experienced Mediation; 44 Solicitor Negotiation and 8 Collaborative Law. Within this we have a mixture of legally aided and non-legally aided parties for mediation and solicitor negotiation and a spread of representation between mediators accredited with the different mediation agencies – NFM, FMA and Resolution – as reported to us by the parties. There was also a range of successful and unsuccessful attempts at FDR. Our practitioner sample comprised 40 practitioners spread over the three processes many of whom were ‘hybrid’ professionals practising across more than one FDR process. They were fairly equally spread across the mediation organisations and between lawyer and non-lawyer mediators.

Figure 1 - Practitioner Sample

The identities of all party and practitioner participants have been anonymised and any names of participants

referred to in our Findings below are pseudonyms.

Phase 3 – In the final phase of the study, we recorded a small number of examples of each FDR process to triangulate with our thematic analysis of the party and practitioner interviews. We recorded five mediation processes (4 concerning children’s matters and one financial; 4 sole and one co-mediation; involving a total of 9 separate sessions) and three collaborative law processes (all concerning divorce and financial matters; involving a total of 11 separate sessions). For solicitor negotiations we made the pragmatic decision only to record lawyer-client first interviews, and we ultimately recorded 5 such interviews: 2 concerning children’s matters, 2 divorce and finances and one focused primarily on divorce. We analysed the transcripts with a view to understanding the dynamics of the process and the interactions between the parties and practitioners, and to identify best practices.

Our Key Findings in relation to our research questions are set out in the sections below. They follow the journey taken by parties through FDR processes, beginning with awareness, moving through issues of choice, experience and outcomes, but building in practitioner perspectives. We then consider issues around FDR settlement norms and suitability. We conclude with our thinking on best practice and policy implications based on this study.

0

5

10

15

20

25

30

Sol only Med only Sol/Med Sol/collab 3 process

%male %female

We defined the three FDR processes and explained them to parties in Phases 1 & 2 as follows:  Solicitor negotiation (in which solicitors engage in a process of correspondence and discussion to broker a solution on behalf of their clients without going to court ).  Mediation (in which both parties attempt to resolve issues relating to their separation with the assistance of a professional family mediator).  Collaborative law (in which each party is represented by their own lawyer; and negotiations are conducted face to face in four-way meetings between the parties and their lawyers, with all parties agreeing not to go to court).

AWARENESS OF OUT-OF-COURT DISPUTE RESOLUTION

Traditionally, people’s first port of call when faced with problems concerning family breakdown was to see a solicitor (Genn 1999). Although the FLA 1996 reform was never implemented, part of its legacy was to establish family mediation as the policy makers’ preferred method of dispute resolution for publicly funded disputes, with the requirement for assessment of suitability for mediation a Funding Code pre-requisite for legal aid from 2000 onwards. This encouragement and facilitation of mediation was, as noted above, accompanied by a clear shift in family lawyer behaviour, with many lawyers also training as mediators and both the Law Society’s Family Law Protocol and Resolution’s Code of Practice advocating non- adversarial approaches to family dispute resolution within solicitor negotiation and collaborative law wherever possible. But how far had these alternatives to court entered public consciousness?

The National Picture – Key Findings How many people were aware of Alternative Family Dispute Resolution? In the nationally representative BMRB Omnibus survey (an accurate proxy for the general public), 32% of respondents had heard of Solicitor Negotiation, 44% had heard of Mediation, 14% had heard of Collaborative Law, with 45% indicating they had heard of none of these. In both the CSJPS survey (in which participants were on average older and more legally aware) and the divorced and separated population of the Omnibus survey, there was a higher awareness of alternative processes, but the relative levels of awareness remained the same.

Sources of information For the general population, the main source of information about all of these out of court FDRs was the media/internet, or family/friends. For the divorced or separated population, however, the main source of information about the FDR options was a solicitor.

Who was more likely to have heard of each Dispute Resolution Process?  More women (49%) than men (39%) had heard of Mediation (there was however no gender difference in awareness of Solicitor Negotiation or Collaborative Law).  People aged 45-54 were most likely to have heard of Mediation and Solicitor Negotiation.  Those in a higher socio-economic class were more likely to have heard of each FDR.

Awareness from the Party and Practitioner Perspectives Awareness of solicitor negotiation Quite a few parties were not aware that solicitors engaged in out-of-court dispute resolution; they thought that going to a solicitor meant going to court. Some people were well informed about the process but others just went along with the solicitor’s suggestions without viewing it as a distinct FDR. It seems a more passive decision than mediation or collaborative law but usually involves active desire to avoid court if possible, so it shares that common feature with the other FDRs.

Awareness of FDRs: key messages

 The media and internet are key sources of information for the general public about FDRs.

 Levels of awareness were associated with age, gender and class.

 For the divorcing/separating population, solicitors were the major source of information about FDRs, including mediation, prior to LASPO.

 Practitioner awareness of FDRs is critical to explanations and understandings by parties of FDR choice, expectations and engagement with the process.

Improving awareness of FDRs: key messages

 Awareness needs to be enhanced both for the general public and in terms of the information available to people at the point of divorce/separation, to avoid constrained and inappropriate choices.  More could be done to raise the profile of solicitor negotiations and collaborative law as out-of-court resolution options.

BMRB All n=

CSJPS n=

BMRB Div/Sep n=

Figure 2 - Awareness of FDRs

Mediation

Sol Neg Collab Law None

ENTERING FAMILY DISPUTE RESOLUTION PROCESSES

Choosing an FDR Process The Omnibus survey confirmed that nationally as many as 47% of couples divorcing or separating between 1996 and 2011 sought no legal advice about their situation, with less than 1% going directly to mediation during this period. This means that almost half of all couples were likely to be resolving matters for themselves. For those who do seek legal advice or assistance from lawyers or mediators, we found from our interviews with parties and practitioners that most guidance given by practitioners to clients included a strong steer to avoid court if possible. Some practitioners stressed the importance of choosing the appropriate DR process. As David Leighton maintained, "the answer comes from being in the right process".

In the Omnibus survey, whilst roughly similar proportions (around 30%) of those who had divorced or separated since 1996 were offered mediation and solicitor negotiation, proportionately far fewer took up the offer of mediation (38%) than those offered solicitor negotiation (89%). The most common reasons for not taking up Solicitor Negotiation were that people wanted to settle without outside help or lack of finances. People’s reasons for not taking up Mediation were more varied, but ex-partner’s refusal to participate, inability to talk to ex, and history or fear of violence or abuse were most commonly cited. The party interviews yielded many reasons for taking one track rather than another. Some choices were active and positive, such as wanting to “keep solicitors out of it” or desiring the support of a solicitor. The wish to resolve matters as quickly and amicably as possible was also a common theme as was, however, wanting to maintain a clear distance from the other party and have a buffer in between them. Other ‘choices’ were passive or negative in effect, for example when one party resisted or refused to engage with whatever process their ex-partner wanted to pursue, or when a party felt pressured into Mediation or Collaborative Law by their ex-partner.

Understanding the options Some people felt that all the options, or at least the FDR process they undertook, were clearly and appropriately explained at the outset and felt they benefited from this approach. Information on options was generally given in a first meeting with a solicitor or at a mediation intake session or (now) MIAM. Written information might also be given, sometimes in advance, of the available options, more often by solicitors than mediators. However, as noted above, many felt that the full range of options and the implications were not given to them or not well explained. A common feature identified was that people did not feel they were emotionally in a good enough state to take in the information. Several people talked about how they felt confused or “bombarded” with information they could not process.

Constraints on choice People on legal aid often felt constrained to try Mediation due to legal aid regulations, and generally did not distinguish between the mandate to attend an information and assessment meeting and the actual engagement in mediation. People using Solicitor Negotiation often talked about lack of choice due to either going to a solicitor and not really being told about alternatives, or due to their ex-partner’s refusal to try Mediation or other routes. People talking about Collaborative Law had notably more choice – as we would expect, the Collaborative Law interviewees tended to be better educated, more affluent, and generally have more sense of choice and agency about their routes post-separation.

Decision to mediate Many people mentioned cost as a reason for choosing Mediation. In particular, those with legal aid often felt pressured into Mediation, or felt they had no real option to refuse. “I felt it was my only real choice to get things sorted... Because I basically got told in terms of solicitor’s time, it was too expensive; there wasn’t enough legal aid to do it.” (Sonia) Many did feel that they had made an informed choice, sometimes based on the cost (perceived as cheaper than the alternatives) but more often based on the desire for a non- adversarial process.

Choosing FDR processes: key messages

 Choice is linked to awareness and clients need to be guided towards appropriate choices that suit their situation as far as possible.

 Clients’ emotional state needs to be factored into information delivery about options.

 There is great frustration around the various constraints on choice, especially cost and legal aid restrictions.

 Other frustrations concern the ex- partner’s ability ultimately to block FDR choice.

 It takes two to mediate and four to be collaborative, leaving solicitor negotiation as the only realistic alternative to court in many cases.

 Client choice would be enhanced by greater practitioner knowledge and experience of what different FDRs had to offer.

“It seemed to be quite a good fit because we are quite amicable...and [it] seemed to be perhaps a good thing for us to try and also to have a third party.” (Geraldine) Time was also a consideration. Mediation was seen as a potentially quick way of dealing with the issues in a specified timeframe.

Decision not to mediate Emotional readiness to engage in Mediation was important. Some people felt too raw at this stage to cope: “That’s why I said I didn’t want to go for Mediation at that point because I just didn’t feel that I could do it.... I didn’t really feel strong enough...” (Tracy) Others chose not to mediate, despite pressure. “His personality can be of a bullying tendency and I just felt that I could be in that room just being kind of talked at... And feeling bullied into backing down. So I was resistant." (Kim) Some practitioners reported that dominant characters, usually professional men, deliberately chose mediation as they believed that they would be able to control their partners best in this process. It was the mediator's role to screen out such cases as unsuitable.

Decision to use solicitor negotiation Solicitor Negotiation was often a default option. For some this was because it was the only real choice they were offered (experienced more often by those who separated some time ago). For others, it was their only viable choice when their ex-partner refused alternatives, or because they had tried Mediation unsuccessfully. “And you felt that was right for your situation, did you? It was the only option I was left with.” ( Richard) Others chose Solicitor Negotiation due to not wanting to be in a room with their ex-partner, while some wanted an ally on their side during the negotiations. As with Mediation, many participants experienced the decision to start the Solicitor Negotiation process as extremely emotionally stressful, and some delayed starting as they did not feel that they could cope.

Decision to use collaborative law In general the choice to attempt Collaborative Law was determined by awareness, access to two collaboratively-trained solicitors, and cost. Those who were given this option typically made a well-informed choice, based on their desire for an amicable process and on having significant assets to discuss, and sometimes the perceived benefit of having their own lawyer involved. “The reason I wanted to do collaborative rather than Mediation...was because I thought I wanted someone in my corner...and I know the lawyers obviously work together, but at the same time you still have someone, essentially, there for you”. (Tracy) A couple of interviewees felt slightly coerced into choosing Collaborative Law, because it had been chosen by their ex-partner and they did not want to argue about it. As with Mediation, some collaborative law practitioners also noted the issue of dominant men choosing collaborative law as they hoped to secure a better outcome.

Decision not to use collaborative law One reason for rejecting Collaborative Law was similar to Mediation: the discomfort about having to be in the same room as an ex-partner. Women were more likely to mention this as a reason than men.

What could be done better?

 Availability of counselling or other therapeutic interventions to support emotionally vulnerable parties.

 Greater awareness of potential abuse of mediation and collaborative law for strategic reasons by dominant or controlling partners.

 Availability of public funding for other out-of-court FDRs where there is no possibility of mediation.

Screening for Mediation in Cases of Domestic Abuse: Cause for Concern? Despite the attention that has been focused on the need to screen out domestic abuse cases from mediation identified in the late 1990s (Hester et al 1997; Piper & Kaganas 1997) and the embodiment of this requirement in the Legal Aid Funding Code in 2000 and subsequently in the Codes of Practice for all mediation organisations, our study found worrying evidence of cases where screening appeared not to have occurred, or not to have been responded to appropriately.

Screening for and response to domestic abuse: key messages

 Enhanced screening and safeguarding procedures are needed to properly assess risks to victims of

EXPERIENCE OF FAMILY DISPUTE RESOLUTION PROCESSES

Solicitor Negotiations Satisfaction with the process of solicitor negotiation In the Omnibus survey, 65% of the 70 respondents who had experienced solicitor negotiations were satisfied with the process. Similarly, within the party interview sample, over two thirds of those who had experienced solicitor negotiation were satisfied with it as a process.

What people liked about the process People often liked the structure of this process – the formality of letters. People often also liked having someone specifically on their side. “At the time, I felt he was my only ally. He knew the system and he was the only one that was on my side.” ( Leo) Efficiency, good advice and professionalism were mentioned as positives. People described their confidence in their practitioner’s skill and knowledge of the system, and their ability to rely on that at a difficult time. “You lose it there for a while. Which is where my solicitor was good, because she would sit me down and say, ‘Right, this is what happens next. This is what your options are.’” (Stella) Not having to see the ex-partner or talk to them directly was also a strength, or necessity, for some.

What people did not like about the process Many people mentioned the process leading to high levels of stress. It was fairly common to experience an increase in hostility resulting from the initiation or progression of Solicitor Negotiation. “I suppose it’s really, just the very formal way that the solicitors correspond with each other, and once my former wife saw the letter that came to her solicitor, as far as she was concerned that was akin to war being declared.” (Joe) The length of time taken was a major negative for many, and some people felt that the cost was either excessive, or too difficult to anticipate when starting the process. There were particular problems with cost when one party was legally aided or self-representing, while the other was paying for every letter. People often felt that the other party or their solicitor were deliberately delaying the process, by dragging out response time to letters, or responding minimally to requests, and indeed some admitted to using these tactics themselves. Some also suggested that legally aided parties received limited time or a poorer quality service from their lawyers, which did not help in reaching a resolution.

Objectivity in solicitor negotiations While lawyers stressed the importance of maintaining an objective stance in giving advice to their clients, a positive feature of solicitor negotiation mentioned by parties was the partiality of having one’s own solicitor, on one’s side, fighting one’s case. Many people found this reassuring, though some felt that their solicitor was too impartial, not involved enough, or perhaps even sympathetic to the other side.

The Process of Solicitor Negotiation: key findings

 Around two thirds of people were satisfied with the solicitor negotiation process.

 In particular people welcomed the support that it offered them at a traumatic point in their lives.

 There were common criticisms of delay and higher than expected costs, as well as stress and hostility.

What could be done better?

 More universal adherence among solicitors to a conciliatory approach. A number of practitioners expressed their frustration at some solicitors who take an adversarial, hostile and aggressive approach to negotiations, regardless of professional codes of practice.

Mediation Satisfaction with the process of mediation Only 41% of the 46 respondents to the Omnibus survey who experienced mediation expressed satisfaction with the process. By contrast, almost three quarters of our party sample were satisfied with the process of mediation.

What people liked about the process People often mentioned that they liked having a structure within which to talk: a managed discussion both in terms of an agenda outlined at the start, and in terms of the mediator keeping the parties on track in working towards solutions. They also appreciated the fact that agreements made in the session were written down so could not be forgotten. Mediation was viewed as quicker and cheaper compared to the alternatives. Some found it an amicable way of resolving a dispute, though this was not universal. Some people appreciated the opening up of communication, the suggestion of new angles, overcoming emotional stalemates, and sometimes the taking of tiny steps forward, (for instance in getting contact re-started). “I wouldn’t say they gave us anything new. I would say maybe a different angle or a different way of looking at things because we were unable to because of our emotional involvement in that particular topic” (Stan) Some commented on their confidence in the practitioner’s skill. One aspect of mediation that a few parties commented on favourably was the use of flipcharts to show both parties their financial position and options for property division. Some, like Norah, were satisfied with the process even without achieving a significant outcome: “It helped us step along the way.”

What people did not like about the process There were a number of aspects of Mediation that people did not like. People found it a hard or uncomfortable to do. Some people found having to sit in the same room as their ex-partner very difficult. For many, the process itself of having to discuss sensitive issues with their ex- partner in this context was very hard, and sometimes unbearable. “It was extremely traumatic. It’s a very, very unpleasant memory indeed...I remember certain terrible moments in it, you know, some of the worst moments of my life.” (Monica) People often struggled with power dynamics and power imbalances between the two parties and the mediator, and this was a frequent source of dissatisfaction. Some people felt that the mediator did not adequately support them during the process. Some were upset if the mediator seemed to know one person before the start – especially if the mediator had conducted the MIAM for one party and not the other. “It was the one that he’d seen when he first went, so I felt like she knew his background, but she’d only really, like, read my background so she didn’t know anything really about me. She’d heard his side of the story, she’d not given me a chance to hear mine.” (Kathy) Some found the lack of legal context difficult, either in having a counsellor mediator who was not aware of all the legal implications, or simply in the fact that the mediator could not give legal advice when the party felt the need for it. A number of people commented that the main problem for them had been the non-enforceability of agreements reached during the sessions. Some felt that mediation was never going to work, but they had to attempt it for legal aid reasons, or to show willingness with the aim of convincing their ex-partner, solicitors or judges in future about their seriousness in terms of child issues. Occasionally, people felt that their mediator was not acting professionally. For example, one heard her mediator discussing their case with others, audibly, after the session. Some found the cost of mediation prohibitive, especially if a few sessions were required, and this was particularly difficult if only one party was legally aided.

Co-mediation Whilst many practitioners thought that co-mediation was very useful, particularly in difficult contact disputes, it appears to have become a minority pursuit, essentially because of costs.

Shuttle mediation Mediators preferred not to use a shuttle model unless strictly necessary (for some domestic violence cases or where the parties are unable to make progress in the same room) as it is less likely that breakthroughs in communication will occur ("the aaha moment", as Gordon Russell described it) in shuttle mediation.

The Process of Mediation: key findings

 Almost three quarters of our party sample were satisfied with the process of mediation.

 Those who were not satisfied were most often those who felt pressured into mediation.

 Perceived quality of the practitioner was key.

 Positive features of mediation included the structure it provided, the fact that it was generally quicker and cheaper than other options, and its ability to open communication, present parties with new angles and help them to move forward.

 Some parties found the process difficult, uncomfortable or traumatic, and expressed concerns about power imbalances, perceived lack of mediator impartiality, unenforceability of agreements, and the cost of multiple sessions. Some felt they had to participate even though they did not expect the process to work; and some felt they suffered from a

What could be done better?  Avoid the impression of alignment with one party before the first joint session.  Better screening for abuse and conflict – many complaints about lack of impartiality occurred when there was high conflict between the couple which the mediator could not contain.  Anticipate and respond to parties’ need for legal advice by encouraging them to obtain legal advice before commencing mediation.  More frequent use of gender-balanced co-mediation would help to address some parties’ concerns about partiality.  Provide greater opportunities for children’s voices to be heard in mediation.

Collaborative Law Satisfaction with the collaborative process The numbers in the Omnibus survey who experienced Collaborative Law were too small to be able to speak reliably about their satisfaction rate. However the few people in our party sample who went through Collaborative Law expressed a high degree of satisfaction with the process. As already noted, these parties tended to be better educated and informed, and more affluent with a wider set of options available.

What people liked about the process Aspects of Collaborative Law that people particularly liked included the opportunity to resolve problems amicably, but also with personal support. "I really needed someone to help me because I wasn’t in the headspace really to negotiate ... I needed someone on my side, if you like, rather than a mediator". (Marcus) People talked about good relationships with their solicitor, and how this helped their negotiations with their ex-partner. Others felt that the positive dynamic between the solicitors was conducive to a productive process, as was the fact that the solicitors were working jointly with the parties. “There was no ‘My solicitor, your solicitor’ sort of thing and it was all comfortable and jolly in places”. (Joshua) This meant, in some instances, that both solicitors could offer support to a party: “She was on my side, but, actually, on one particular issue, so was his on my side.” (Pauline) The fact that discussions occurred in meetings rather than by correspondence, which meant that any misunderstandings could be ironed out immediately, was a point of contrast with Solicitor Negotiations which people appreciated. Collaborative Law was also seen as relatively quick compared to Solicitor Negotiation. “I couldn’t fault it. It was just so, without having to wait for letters or worrying.... [T]here was no uncertainty and...it was all quick and it was all sorted out together and explained together...” (Joshua)

What people did not like about the process Some found it awkward to discuss personal issues in this context. There can be complicated power dynamics and relationships in the four person process. The complexity of working collaboratively yet with a specific client was not always easy to manage. S ome felt that their solicitor was too impartial, not involved enough, or perhaps even sympathetic to the other side.

“The thing that bothered me slightly was that I had the impression that [her solicitor] and my husband’s solicitor, you see, he’d worked with her, obviously, quite regularly - were almost deciding for themselves how this was going to work, and I think she was influenced by my husband who was quite forceful about what he thought.” (Sheila) The cost was mentioned by several as a negative. Although one party thought it was probably cheaper than alternatives, others felt it was excessive. The lack of mechanisms to enforce financial disclosure in a timely manner could also be an issue.

The disqualification clause Most collaboratively trained practitioners saw the disqualification clause as "one of the fundamental building blocks" in the collaborative process (Ed Jamieson). Nevertheless, some practitioners (both collaboratively trained and not) commented that the disqualification clause discouraged people from attempting the collaborative process, and the practice has developed of so-called ‘collab lite’ or ‘co-operative law’, in which the participants follow a collaborative process but without a disqualification clause. None of the parties we interviewed, however, chose not to enter collaborative law because of the disqualification clause. And for most who undertook the collaborative process the presence of the disqualification clause was viewed as either inconsequential, a means of ensuring that the parties remained at the negotiation table or a financial incentive to the solicitors to find a solution. In two cases the collaborative process broke down and the parties had to instruct new lawyers, but both were happy with their new representatives and did not appear to have resented the change.

The Process of Collaborative Law: key findings

 The collaborative process attracted a high degree of satisfaction.

 People liked the opportunity to resolve problems in an amicable process, but with personal support if needed.

 The process was seen as more supportive than Mediation, and quicker and less prone to inflame conflict than Solicitor Negotiations.

 The main drawback of the process was cost; the four-way dynamics between solicitors and clients could also misfire.

 While practitioners worried about the effect of the disqualification clause on parties’ willingness to participate in the process, it was either seen as a positive or inconsequential by our party interviewees.

Collaborative Law Even though those who signed up for Collaborative Law were mostly low conflict cases, they could also be emotionally fraught. “I was incredibly angry that she had ended the relationship how she had. She wasn’t in conflict at all as she was very calm and level headed and there wasn’t really any conflict from her side, I was just angry and very emotional.” (Marcus). Dealing with emotions in the collaborative process could be tricky. “... it’s one of the most, emotional days that I have ever had in my life, and you are both still walking out the front door together. It just didn’t feel right. And then we had this really awkward moment of, ‘Right, well, erm, I’m going to go here for a coffee,’... It was all a little bit jolly for me, to be honest, that day.” (Jane) Some parties felt their collaborative lawyers had dealt well with the emotional aspects. “My wife and her lawyer were just very business-like... I think (solicitor) appreciated that I was in more of an emotional space. ...[W]e had one meeting and then...the day before the next meeting I talked to him and just said that I was struggling and he was the one that just said ‘let’s cancel the meeting’ and ‘you are not in a place to negotiate and move on’.” (Marcus)

 Given issues

around emotional readiness, combining FDR with therapeutic intervention may enhance capacity to reach agreement.

Focus on the child’s welfare in the FDR processes All three processes officially espouse a focus on the children’s needs and well-being, both in children’s cases and in financial cases where there are dependent children. Many parties said that the mediator or solicitor did focus on the child’s welfare and put that at the centre of negotiations. “One of my husband’s objectives was to spend as much time with the children as possible and so the mediator said, ‘Well, why don’t we phrase it as to be able to build meaningful relationships with the children?’” (Tracy, Mediation) However a number of parties said that they thought the process they had followed was not child focused, and some thought that the child’s welfare had been conflated with the resident parent’s preferences. “I expected us to be talking about what was best for my son but it turned out to be, in my opinion, what was best for his mum.” (Leo, Mediation) In the recorded sessions we observed mediators in particular using a focus on the child’s welfare as a tool to bring the parties together and encourage them to put their adult dispute aside in order to co-operate as parents. But we also observed how easy it was for the focus on the child to be lost and for children’s interests to recede into the background. Moreover, the voice of the child – direct attention to children’s wishes and preferences from their own perspective – was notably absent from our recorded sessions and in many cases from the parties’ accounts. As indicated earlier, child inclusive Mediation appears to occur relatively rarely, but there is certainly an argument for including children’s voices more systematically both in Mediation and in other FDR processes.

Focus on the Child’s Welfare: key messages

 All three processes aim to focus on children’s welfare, although such a focus can be difficult to maintain in practice and requires conscious effort.

 There is an argument for more systematic inclusion of children’s voices in all three processes.

The Other Side A strong theme throughout the party interviews was the description of the other side – the other party, and also in Solicitor Negotiation cases the other solicitor. Both parties and practitioners regularly referred to problems with the other side’s solicitor being adversarial, or slow, or unwilling to cooperate. Similarly, parties often represented their ex-partner as the sticking point, the unreasonable person who was to blame for refusing to mediate or lack of resolution, or not prioritising child welfare. While the structure of Solicitor Negotiations makes it difficult to overcome this construction of the other side, both Mediation and Collaborative Law do consciously attempt to counteract polarisation of the parties, by focusing on parties’ common interests: their parenting relationship and their children’s welfare and financial security (in Mediation), or through all four participants working together to find a resolution in the interests of the family as a whole (in Collaborative Law). At the same time, particularly in Mediation and Collaborative Law, it seems that the court becomes the ‘other’, with court proceedings used as a warning or threat and represented by mediators and solicitors as riven with delay, financial and emotional cost and uncertainty, and to be avoided at all costs. As with the construction of the other side as always the problem, the construction of court proceedings as always the worst option seems also to be an exaggeration, which may even prevent some practitioners from recognising when it may be the most appropriate process for some parties.

Key Finding:

There is a strong tendency to blame the other side for failures in FDR. While Mediation and Collaborative Law consciously attempt to overcome polarisation of parties, they often engage in polarisation of processes, with a highly negative image projected onto court proceedings.

Comparing FDR Processes A number of parties had experience of both Solicitor Negotiations and Mediation and could compare their experiences. The majority (mainly men) had gone to mediation after initial attempts to negotiate via solicitors. A smaller number (mainly women) had engaged in Solicitor Negotiations after a failed attempt at Mediation. Views were split on which they preferred. Solicitor Negotiation was preferred because it was a more defined and legally consequential process. “It was absolutely hands-down better than mediation because there were logical steps to it, there were contracts in place at the end of it and there should be consequences when these contracts are… So, yes, the solicitor approach is much better.” (Stan) It was also preferred for having more teeth if one partner was not cooperative. On the other hand, Mediation was considered more comfortable, less stressful, and more creative. “It enables you to think outside of the box and enables you to come up with solutions that you wouldn’t have necessarily have sort of come up with if you had sort of gone to a solicitor.” (Malcolm) It was also seen as less invasive of people’s lives. “You open a letter and you read it and you just think: ‘Oh, my God!’ You know? Your stomach turns, you know. You’re crying over the soup! In the mediation it’s more contained.” (Lorna) One party, Sheila, had experienced a mediation intake session, collaborative law (with two different solicitors), solicitor negotiations (with a third solicitor) and a subsequent MIAM before ending up in court. In her account, the constant between all these processes was her ex-husband’s unwillingness to compromise on the arrangements he wanted for both the children and their finances. What had changed had been her own level of awareness, from having been unprepared and unwilling to engage at the beginning to becoming much better informed and empowered. In particular, she noted that while she had been unimpressed by the service provided by her first solicitor, and ultimately sacked him, her second solicitor “was brilliant and explained things really well. She was superb, she communicated really well. So I understood everything at that point. And then the subsequent ones have been very good as well. And I have got better at asking questions.”

Comparing FDR Processes: key messages

 It is clear that the different processes have different strengths which suit different parties and cases.

 Failure in one FDR process can put people in a better position to reach a resolution through a different process; but sometimes it was clear that no form of FDR was likely to be successful.

further 7 reported a partial outcome, with some contact being agreed or an interim arrangement put in place. Of the 16 who attempted Solicitor Negotiation but failed to resolve, 7 reported fringe benefits and 2 reported partial outcomes. Similarly in Collaborative Law, a partial outcome alleviating some concerns was achieved in one of the 2 unresolved children disputes, with other positive benefits being reported in the other unresolved case. However partial outcomes were a frequent source of dissatisfaction for parties. Such outcomes were encountered in all the processes, with other matters either being resolved at court or in some cases through direct negotiation between the parties. Matters were also sometimes left unresolved, with the party with the least incentive to settle often gaining the upper hand through delay and inaction.

The non-binding nature of mediated agreements Whilst some, such as Andy, saw the non-binding nature of the mediated agreement as a positive, providing flexibility, a larger number of participants were frustrated by the fact that a mediated agreement, unless approved by the court as a Consent Order was not enforceable. Seth had reached an agreement in mediation 9 years earlier but his wife refused to be bound by it when they finally divorced: “At the time, I felt it was a good thing as we came up with something which we could work to. Since then... everything we agreed to at the time has been dismissed... It makes me wonder whether I should have gone to a solicitor and got it confirmed in court but I didn’t do that, it was my mistake.” Raymond, when interviewed, was on tenterhooks as to whether his ex-wife would agree to a Consent Order reflecting the mediated agreement: “If it doesn’t get agreed, it would have been a waste of time and money. That was my initial reluctance for the process ... it may be worthless. So we will have to see.” Another problem was the short-lived nature of some mediated agreements, particularly around arrangements for children. Karl had agreed interim contact with a review in mediation after 6 weeks, at which point his ex-partner denied him further contact and refused to mediate further. “It felt like a pointless exercise...I might as well have just gone straight to court back months and months ago instead of going through all the rigmarole.”

identified even where FDR failed, in around half of the cases in each process, although partial outcomes were often a source of dissatisfaction.

 The lack of enforceability of a mediated agreement other than through court order was a source of dissatisfaction by the majority in mediation, as well as a reason to choose court or another FDR.

Reasons for settlement Mediation In mediation, cases which settled divided between those who settled because they thought they had agreed a fair settlement or good settlement from their own perspective; those who just wanted the matter over and done with either to protect their children or so that they could themselves achieve closure and so were prepared to compromise or capitulate; and those who wished to avoid court at any cost. Some like Alison and Ryan settled all issues, felt the outcomes were fair and were full of praise. Generally, financial cases were easier to settle, with the reality of what was possible becoming apparent within the process. Rebecca, who could not agree arrangements for sharing care of the children with her partner, found the financial matters far more straightforward to settle on. Children cases were often a case of taking what was offered as it was better than nothing or being persuaded that the proposal was the best for the children. Eleanor settled because she “managed to get exactly what she wanted.” Charlie thought he should share the care equally with his ex-partner, but agreed 45:55 time split as well as an equal share of the financial assets, which was “better than expected”. Kathy agreed a contact arrangement for her children because it was all that was possible given her ex’s shift-work. Tilda agreed to share care for the children, more than she would have wished, and split the family assets equally as she knew she could not face going to court and was certain her ex would have issued proceedings if she had tried to push for a different settlement. “I feel I got the ...absolute minimum...I didn’t really have a lot of choice in that unless I wanted to go to court...which would cost me more.”

Key messages on FDR outcomes: settlement factors

 Agreed fairness of outcome by both parties was the best settlement trigger, but often hard to achieve.

 There were more levers to achieve financial pragmatism in FDRs than to settle children disputes with shared perceived satisfaction.

 A process of attrition or general exhaustion and desire for closure, as well as a strong desire to avoid

Solicitor negotiations Within solicitor negotiations, the primary reason for settlement was a perceived ‘good’ outcome or a lower offer taken on the advice of the lawyer. Where matters were settled contrary to such advice, this was often due to reasons of cost or the desire to have closure and move on, especially after lengthy negotiations where court was the only other alternative. Harry accepted limited contact with his baby son on his solicitor’s advice that greater contact was unlikely if the matter went to court, given his son was so young and he lived a long way from his ex. Patty signed over her share of the house and business to her husband to enable her to take her son abroad and is now living in straitened circumstances. She explained, “I was so tired and stressed by the whole thing, I think I allowed it to happen if I am being honest.” On the other hand, Stuart settled after failed mediation and protracted solicitor negotiations, saying “At the end of the day she walked away with almost exactly what I had proposed.”

Collaborative law The majority of parties indicated that they settled because they reached an agreement they viewed as fair. For example, Sebastian indicated that he was intent on treating his wife in a "fair and honourable way" in order to preserve his excellent relationship with his adult children. For some of the women, their notions of what was fair were tinged by feelings of guilt at ending the relationship and a desire to placate their husbands. For example Pauline: "[Husband] has always behaved as the wounded party… I did feel, 'well, you know, he didn’t want this, I’ve got to be fair and make sure that he’s happy'.” In the recorded sessions, one primary carer mother settled for less than half of the liquid capital and no pension because she knew that her husband would not agree to anything more and she "just wanted to get out”. Women were also strongly motivated to ensure that any minor children were provided for. "We have got three children and I want [husband] to be in a nice house where our children are going to be half the week." (Jane)

court or an inability to afford court proceedings, all play a role in settlement for some parties in all FDRs.

Cases that were not resolved by FDRs Where cases were not resolved by FDR, they were either so intractable that they had to be adjudicated or otherwise settled at the door of the court. In some cases, matters were settled against the odds by direct negotiation between the parties.  Stan, whose ex-partner had been resisting contact, was awarded a shared care arrangement at court and felt totally vindicated that he had not settled for less than substantial contact with his son.  Lorna settled her financial claim through negotiations between solicitors, finding the door of the court focused her ex-partner’s mind on what sort of financial settlement might be fair, where mediation and solicitor correspondence had failed. A few cases remained unresolved, with the parties considering further action at the time of the interview and limping along with failed agreements or entrenched positions where they were waiting to see who took further action first. Analysis of these cases shows that where parties have taken entrenched, opposing ideological positions regarding what is best for a child in terms of appropriate levels of shared care or contact, there can be no FDR resolution.  Terry whose Solicitor Negotiation failed as he would not compromise on anything less than his ultimate goal of equal time shared residence of his children, actively pursued the matter in court and was awaiting a final hearing. He had a clear plan, regardless of whether this approach was right for any individual child and was now acting as a McKenzie friend for other fathers. He explained, “…[O]nce you’ve got the kids for a few days and again they were still reasonably young, so there’s a good chance that within a few years after that you’re looking at 50/50 and shared care.” He used the welfare principle in an un-nuanced way, casting his ex as implacably hostile to contact because formal equality was not agreed. He advocated the use of cameras to spy on an ex-partner and record all interactions, regardless of how this might affect the children. Less extreme cases of entrenchment and clashing ideological ‘principles’ came through in some of our recorded sessions data and confirmed that not all cases can deliver settlement through FDR. In one mediation which did not resolve but which was early in the relationship breakdown cycle, the husband wanted and strongly believed that formal equality in terms of shared care was best for their children, whereas the wife was adamant that children needed to have one primary home to anchor their lives. Both worked with children and both could cite

Key message from cases that did not resolve:

 Not all cases can be resolved by FDR processes. For some, pursuit of ‘justice’ or what they perceive to be the right outcome is critical and trumps the expediency of a compromise settlement.