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25 FEB 2011

Sandra Davis' Week: ADR with teeth?

Sandra DavisPart 1.1 of the new Family Procedure Rules 2010 ("FPR") repeats the overriding objective in ancillary relief proceedings contained at rule 2.51D of the old Family Proceedings Rules. More than this, it extends it to all family litigation. The most instructive aspects of Part 1.1 is the acknowledgement that dealing with a case justly includes "saving expense" and "allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases".

Hence the Coalition's announcement that the implementation of the FPR on 6 April will, in most cases involving children and money following parental separation, be accompanied by the introduction of the pre-action protocol for mediation information and assessment contained in Practice Direction 3A.

The reasoning behind this is set out in the Practice Direction: "There is a general acknowledgement that an adversarial court process is not always best suited to the resolution of family disputes, particularly private law disputes between parents relating to children, with such disputes often best resolved through discussion and agreement."

Regular readers will not be surprised to hear that I fully endorse this rationale.

My concern, however, is that a blanket approach is not necessarily appropriate - mediation is only one of a range of alternative solutions to the consequences of family break-up; education, therapy and, sadly, litigation are also often required. The truth is they are all more expensive than mediation and therefore less attractive propositions.

Further than this, I doubt that the requirement to attend a meeting to listen to the benefits of mediation represents the panacea. With publicly funded litigants this has been the case for years: figures released by the Legal Services Commission suggest that only a fraction of applicants for legal aid did much more than go through the motions of attending a mediation assessment in order to get funding to litigate.

Even if we put these concerns aside, the question becomes: where are all the trained mediators? Over 100,000 couples are divorced each year in England and Wales. Without investment in training and resourcing the delays currently experienced in the Family Court system will be replicated in mediation. Just as important as saving cost and Court time is the overriding objective to deal with cases "expeditiously and fairly".

A leading newspaper argued this week that any objection to the Government's proposals "smacks of lawyers and lobbyists whose prime purpose is to safeguard their rather generous earnings from family break-up." 

I'm afraid they are wrong; it is simply that using mediation as a gateway to litigation is not a means of alternative dispute resolution at all. Resolving the problems that arise from parental separation needs more than this. Proper investment in the full panoply of Alternative Dispute Resolution options is what is required.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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