Since 22 April 2014 the Child Arrangements Programme set out in Practice Direction 12B to the Family Procedure Rules 2010 has set out the manner in which private law disputes over children must be handled by the courts.  The importance of out of court resolution of such disputes, particularly by way of mediation, is now a core part of the whole process.  In this post I consider whether there is enough clarity over when negotiations between the parties to a dispute over children are protected by without prejudice privilege.

At the very outset of almost all private law proceedings about children the applicant must now attend a meeting with a suitably qualified mediator (a Mediation Information and Assessment Meeting or 'MIAM') to be provided with information about the use of mediation to resolve the dispute without a court process.  At each stage of the proceedings the judge must also consider whether the proceedings should be adjourned to allow non-court dispute resolution to take place (but only if the parties agree to do so).  It is not yet possible for the courts to simply refuse to hear proceedings in order to require out of court resolution (but that may happen in the future - see my earlier post on this issue).  

The encouragement of a negotiated resolution of the case is also built into the court process itself.  The first hearing in nearly every case will be the First Hearing Dispute Resolution Appointment ('FHDRA') at which the parties will be asked to discuss the dispute with an officer from CAFCASS who will seek to 'conciliate' between them.  There may also be a mediator available at court who may formally 'mediate' between the parties.  The judge may also try to assist the parties find some level of agreement during the four hearing itself.  If no agreement is reached at the FHDRA there will be a Dispute Resolution Appointment ('DRA') later in the case.  At this hearing the judge will review the evidence and determine the extent to which any issues can be resolved or narrowed at that hearing.  Only after that hearing will any matters which are not agreed be listed for a final hearing where the court will finally determine them.

Given that it has been reported that around half of all private law proceedings concerning children now involve parties who are not legally represented since he virtual abolition of legal aid for private law children proceedings in 2013, many of the case proceeding through the above process will have one or both parties acting in person.  One particular matter all litigants will have to have in mind is understanding when what they say may be 'privileged' or effectively 'off the record' for the purposes of negotiations and when such discussions are a matter which can be referred to in court when the judge is being asked to make a decision.  A proper understanding of this may well assist frank and constructive negotiations which lead to more compromise and agreements.

It is a general principal of English law that any statements or admissions made in the course of negotiations in an effort to compromise a dispute are protected by without prejudice privilege.  The privilege means that neither party may use the without prejudice material or statements in the course of the proceedings.  The result of this is that a party can speak frankly in negotiations without fear of being confronted by the adverse admissions before the judge later in the proceedings.  It is extremely useful.  A party can 'test the water' by making admissions and offering to settle on terms which are not as good as those he or she will seek if the matter goes to court in the hope that this will lead to fruitful discussions and compromise.  If there is no compromise nothing has been lost.  The privilege is not absolute, but the grounds upon which it is disapplied are quite narrow.  

Most of the case law relating to without privilege is in the context of commercial disputes.  In my experience, quite a few family lawyers seem to believe that the privilege does not apply in proceedings concerning children.  It is not really clear to me how they reach that view.  The confidentiality of any process of family mediation is covered by an existing precedent: Re D (Minors)(Conciliation: Privilege) Disclosure of Information) [1993] 1 FLR 932, which states that “parents would not achieve a compromise unless they approached conciliation openly and were prepared to give and take. They would not make admissions or conciliatory gestures unless they were confident that these could not be used against them. Any attempt at conciliation must be off the record but there were exceptions . . . “ and further “the only exception would be in rare cases where a statement made during conciliation indicates that the maker has caused or is likely to cause serious harm to a child”.  This case continues to be cited as part of guidance issued to the judges by the Family Mediation Council and the Family Justice Council.  It seems likely, although it has not yet been tested by a reported case decision, that the same principles also apply to settlement negotiations taking place between the parties, whether with a lawyer or mediator involved or not.

So which parts of the process of set out by the Child Arrangements Programme are potentially privileged and which are not?  Somewhat, unhelpfully, the Child Arrangements Programme does not really make this clear at all.  Only at paragraph 14.9 is there a reference to privilege: 'The FHDRA is not privileged. That is to say that what is said at the FHDRA may be referred to at later hearings.'  OK, that is clear enough, or is it? What does the FHDRA actually include? Clearly what is said inside the courtroom to the judge during the hearing is not privileged; but surely what is said to a mediator at court is privileged in the usual way.  What about what is said to the CAFCASS officer during the conciliation meeting?  This will feel like a mediation meeting to the parties but is what they say 'open' or 'without prejudice'.  According to Re D, these discussions should be privileged, but past experience suggests that many CAFCASS officers do not regard them as being without prejudice.  Clarity would be very useful.  

The same difficulties may arise at the DRA.  In financial proceedings there is a hearing called the Financial Dispute Resolution Hearing ('FDRH' - just to add more to the acronym heap so loved by modern family lawyers).  The rules say that this is a hearing at which comments are treated as being without prejudice and the judge who hears the FDRH may play no further role in resolving any of the contested issues in the proceedings (other than to preside over another FDRH, of course).  The DRA in proceedings over children does not have those provisions to protect anything which is said during the appointment with the judge.  In fact, the judge hearing the DRA will often be the judge who will conduct any final hearing. Yet again, the parties may feel as though they are in a mediation type situation but they are not.  Any admission or concession they make at the DRA will be treated as being 'open' and to be used by the court at any subsequent hearing.  Either the parties will realise that this is the case and be much more cautious in making any concessions at all (so that compromise of the dispute or any issue is made more difficult) or they will not realise that what they are saying can be used against them and then feel cheated or hard done by when their concessions made in good faith and in a spirit of compromise are used against them.  If they do not realise that they can have without prejudice negotiations outside the DRA without prejudicing their position in court then a compromise is even less likely.

This is an area of law which requires greater clarity in the way it is stated and presented to those using the family justice system, particularly now that far more litigants in these case are acting in person.  One side may be legally represented and aware of the rules over without prejudice privilege while the other is not.  It is a matter of some surprise that despite the growth in mediation and alternative dispute resolution it is now over two decades since the decision in Re D and yet there has been no further clarification of the law.  The introduction of the Child Arrangements Programme is an opportunity to grasp the nettle.

36Mediation has 9 highly experienced family barristers who are trained as family mediators.  Choose from experts in various aspects of child law and family finance issues to find a more civilised and better way to resolve your dispute.  

Is ‘private judging’ by way of arbitration to become the preferred route for resolving financial disputes on divorce and separation?  The Financial Times suggested as much on 28 October 2013 when reporting that the Young v Young divorce dispute starting in the London High Court on that day could be the last big money divorce in the courts as wealthy separating parties turned towards arbitration rather than the courts.  In one of the first family law decisions of 2014 the President of the Family Division, Sir James Munby, gave family arbitration a ringing endorsement by declaring that the courts would give an arbitrator’s award the same status as a settlement agreement reached between the parties[2]. As this article explains, family arbitration is not just for the super wealthy and it has particular advantages for those who are living outside England or who have demands on their time which make conventional litigation through the courts very inconvenient.

In many areas of business and commerce the default method for resolving disputes is arbitration.  Why?  It allows the parties to control the process of dispute resolution in a way which the ‘one size fits all’ court system does not usually allow.  There are many reasons why businesses choose arbitration in preference to the courts.  They include:

·      Dealing with disputes disrupts the ongoing business so a quick resolution is desirable. The courts can be slow and inconvenient but an arbitration can be arranged and conducted at the time, the place and the speed the parties demand.

·      The judge allocated to the case by the court may not have the expertise required to resolve often very technical and nuanced complexities.  An arbitrator can be appointed by the parties who is an expert in the subject matter of the dispute.

·      The courts are very public and the parties are unlikely to want to air their dispute where the media and public can report it.  Arbitration is entirely private and confidential.

Family disputes, whether arising from divorce or the breakdown of an unmarried relationship, are no less complex than those which arise in the commercial world.  Untangling complex financial affairs, often involving companies, trusts and a web of international property and investments, is a complex task requiring highly specialist skills and experience on the part of the lawyers.  This is compounded where cultural or religious factors specific to the parties also come into the equation. When a hearing comes before the court there is no guarantee that the judge allocated will have the necessary experience.  Furthermore, in many courts in England and Wales the delays in waiting for a court hearing in even a relatively simple case can run to a year or more.  In the meantime the parties legal costs rise and neither is able to move forward with their life.

In 2012 came a significant development.  In a joint venture between the world renowned Chartered Institute of Arbitrators, the Family Law Bar Association and Resolution, the Institute of Family Law Arbitrators was formed.  IFLA trains family lawyers to become arbitrators. Further information about the scope of the IFLA arbitration scheme, the applicable rules and a list of qualified arbitrators can be found at www.ifla.org.uk.

In simple terms, the IFLA scheme operates on the basis that once the parties agree to refer their dispute to arbitration they select their arbitrator (or ask IFLA to appoint one in the event they cannot agree).  The parties then sign an arbitration agreement which sets out the issue or issues for the arbitrator to decide.  The parties may wish their whole dispute to be arbitrator or they may only wish the arbitrator to determine a single issue.  Once the agreement with the arbitrator is signed the arbitration commences.  The arbitration follows the procedure the parties have agreed upon and this may be quite different from the normal court process.  Once the arbitration is heard the arbitrator makes his or her decision, called the Award, in writing.  The parties having agreed to be bound by the decision of the arbitrator then submit an order to the court in the terms of the Award (to the extent that a court order is required to finalise matters between them).

Once the parties choose their arbitrator there is considerable scope to customise the procedure for the arbitration to suit the parties and the particular subject matter of he dispute.  The hearings can be conducted in whatever way the parties and arbitrator agree.  Where distance is an issue hearings can be dealt with by way of telephone conference call, video-conferencing, Skype or FaceTime.  The parties can choose the date when the arbitration will be heard, according to the arbitrator’s availability, rather than having a hearing date imposed as the courts do.  The arbitration hearing can take place anywhere in the world which is convenient to the parties. Where the issues permit it, the arbitration can be conducted entirely on paper without any face to face hearing.  This flexibility and ability to tailor the procedure to the needs of the parties is unique to the arbitration process.  This flexibility is likely to be particularly attractive for parties who are living abroad but having their proceedings dealt with in England or Wales.  It saves on the need to travel to England for hearings (hearings which are often cancelled at short notice in any event).  The arbitrator can even travel to where the parties are and hear the arbitration there.

Mediation and arbitration are increasingly seen as the better option compared to going to the courts. These options lie in a broad spectrum. At 36Family we have 9 family mediators and 3 family arbitrators[3].  We also have a team of 11 CEDR accredited mediators able to conduct mediations with the parties' lawyers present, whether the dispute concerns a family matter or a civil dispute.  For those who are looking for a non-binding neutral evaluation of their dispute several of the team offer private FDRs and other neutral evaluation.

More information about family arbitration can be found on the excellent Family Arbitrator website.

[1] This article was first published in 36 Bedford Row’s special international newsletter circulated to clients in Dubai and the Middle East in November 2013.


[2] S v S [2014] EWHC 7 (Fam).  This case is the subject of a separate article in this newsletter by Rebecca Rothwell in the 36Family newsletter.


[3] The author amongst them, and he conducted one of the very first family arbitrations in England, during which the flexibility of the arbitration process was fully utilised by the parties to reach a rapid and cost effective conclusion to a complicated but relatively low value dispute.

This post examines the contrasting roles of mediation in civil and family courts and originally appeared as a guest blog on Marilyn Stowe's Family Blog.

Mediation is a good way of helping separating parties reach an agreement over their children or their finances. Most experienced lawyers and judges would struggle to argue against that proposition for the majority of family cases.

Most mediators will stress that the strength of the mediation process is that it is voluntary: both partiesagree to attempt to resolve their dispute by mediation. Either party may choose to end the mediation without giving a reason. By reason of its voluntary nature, either party may refuse to mediate from the outset.

At the moment, the civil courts are moving more quickly on mediation and appear intent on pressurising litigants to use it. The family courts appear to be moving more slowly and have not yet gone nearly as far as the civil courts in forcing parties to use alternative dispute resolution.  Will that change?  Should it change?

The civil courts: the unmarried couple’s property dispute

To an extent, the voluntary nature of mediation has already been significantly eroded for an unmarried couple trying to resolve disputes over property once their relationship ends as they usually have to use the civil courts to resolve property disputes (though some financial orders for the benefit of the children might be available under Schedule 1 to the Children Act 1989).  The Civil Procedure Rules (CPR) in the civil courts are different from the Family Procedure Rules (FPR) in the family courts.

In the civil courts the court may, even if the parties do not agree, ‘stay’ the proceedings for a time to allow the parties to settle the case, usually by engaging in a form of ADR such as mediation.  The Court of Appeal decided in Halsey v Milton Keynes General NHS Trust [2004] 1 WLR 3002 that the court cannot directly order the parties to participate in ADR as this would breach their right to access to a court under Article 6 of theEuropean Convention on Human Rights. Although the court cannot  specifically force the parties to mediate, it can place them in a position where they have little option but to do so.  The court can make it clear that a failure to participate in ADR may mean that a costs order is made against the recalcitrant party, even if that party ultimately succeeds.  Recently, a party who simply remained silent in the face of an offer by the other party to engage in mediation was penalised very heavily in costs for failing to explain why it was not reasonable to engage in mediation (PGF II SA v OMFS [2013] EWCA Civ 1288).

Of course, if parties are not legally represented in proceedings and not incurring legal costs the threat of costs orders will no real force against them.  This is clearly a concern for the courts because those cases where both parties are unrepresented are often the most difficult and time-consuming to deal with.  This inability of the court effectively to coerce such parties to mediate has caused Sir Alan Ward (part of the court which decided Halsey in 2004) to suggest recently that the rule against ordering parties to mediate inHalsey might have been an error and should be reconsidered (Wright v Michael Wright Supplies Limited[2013] EWCA Civ 234). It would not be a great surprise if we see this issue re-examined by the Supreme Court in the near future and, even if not, we may see a change in the CPR to permit greater powers of coercion, especially in those cases where the threat of a costs order is not very powerful.

Certainly, the civil courts have become proactive in encouraging the parties to engage in mediation or ADR.  The Court of Appeal has actively encouraged the parties to engage with its own ADR scheme for a number of years, with significant success.  The same is true in the lower courts. I recently appeared before a Master of the Chancery Division in a substantial property dispute between an unmarried couple who had separated.  Roughly half of the time at the case management hearing was spent with the Master giving directions which effectively coerced the parties to engage with ADR to avoid punitive costs orders being made against them.

However, the family courts do not appear to be pushing parties towards ADR with the same speed and vigour.

The Family Courts: Matrimonial Proceedings and Disputes Over Children

In most, but not all, proceedings between divorcing parties over financial issues the courts have, for well over a decade, required the parties to engage in a form of judge-lead ADR.  Most cases are listed for a financial dispute resolution hearing (FDRH) before a judge who will not take any further part in the proceedings if a settlement is not reached at the FDRH.  Although sometimes referred to as ‘judge-lead mediation’ this is not, strictly speaking, mediation.  It is, in most cases, a meeting at which the judge provides a ‘neutral evaluation’ of the strength of the parties’ respective cases (something which most mediators would regard as outside their role) and the parties are encouraged to negotiate, usually outside the courtroom. In cases concerning arrangements over children, a process to engage the parties in mediation and/or discussion with a CAFCASS officer is encouraged through the first hearing dispute resolution appointment (FHDRA).  The effectiveness of this process appears to vary widely between courts.

Despite this form of ADR being firmly embedded in the practice of the family courts, there seems to have been less enthusiasm from family judges for coercing the parties to engage in ADR than we have seen from the civil court judges.  Any party issuing proceedings for a financial remedy or in regard to arrangements for children must attend a Mediation Information and Assessment Meeting (‘MIAM’).  Although some parties do so, many do not, and anecdotal experience suggests that the courts do little to enforce this requirement.  If and when passed by Parliament, the Children and Families Bill will put MIAMs on a statutory footing and will authorise the court to refuse to issue or otherwise deal with an application until the applicant has attended a MIAM.  This will certainly make the courts more rigorous but it is far from making mediation or ADR compulsory.  Under these provisions only the applicant is required to attend the MIAM and there is no obligation on the applicant to actually proceed to mediation.  There is no obligation on the respondent to engage with mediation at all.  This is not, as widely but inaccurately reported in the press, compulsory mediation: it is compulsory education about mediation for only one of the parties.

As Mr Justice Mostyn recently reminded us in Mann v Mann [2014] EWHC 537 (Fam), the FPR have an entire section, Part 3, devoted to ADR.  However, the FPR are drafted differently from the CPR.  Unlike the power of the civil courts to stay proceedings to encourage the parties to engage in ADR, the FPR only permit an adjournment to enable the parties to obtain information and advice about ADR.  If, after their dutiful and in many cases cursory, efforts to obtain such information and advice, they decline to mediate, the court may only adjourn the proceedings for ADR to take place ‘where the parties agree’.  In Mann v Mann the parties were engaged in long-running proceedings surrounding enforcement of the terms of a settlement they reached by agreement in financial remedy proceedings during their divorce.  At an earlier stage they had entered into an agreement to try their best to compromise on the issues between them by mediation.  Despite the wife’s opposition, Mr Justice Mostyn adjourned the matter for eight weeks to allow the parties to engage in mediation.  He was only able to do this due to their earlier agreement to mediate.  He also made an ‘Ungley order’, based on the types of order made in civil proceedings, making it very clear that an unreasonable failure to engage with ADR may have cost penalties at the end of the case.

Paradoxically, of course, in any family case where the parties do not agree to engage in ADR the court’s powers to force them to do so remain weaker than those of the civil courts.  It is difficult to see this anomaly remaining.  Expect a change to the FPR to bring them into line with the CPR in the near future.

Is compulsory mediation a good thing?

Greater compulsion to engage in ADR has a strong tail wind.  Many mediators do not agree with it.  Mediation must be voluntary if it is to work properly, they say.  I have some sympathy with that view, but I do not wholly agree.  Yes, parties should be free to leave a mediation if they wish to once it has begun.  It is for the mediator to use his skill to keep the process effective and the parties engaged with it.  But what is the harm in forcing the parties to commence the mediation process in most cases?  Experience suggests that once the parties meet with an experienced and skilled mediator (with or without their lawyers present, depending on the type of mediation they have adopted) they are likely to be drawn into engaging with the mediation process quite quickly.  Initial reluctance to mediate quickly disappears once the parties become involved with the process.  The more time and effort they invest in the process the more engaged they become.  It is a virtuous circle.  But sometimes only a degree of coercion can place the parties within that circle in the first place.

Hard statistics on the success of mediation are not easy to find.  Justice Minister Jonathan Djanogly spoke of a 68 per cent success rate in legally aided family mediations in 2012.  The Centre for Effective Dispute Resolution cites a 90 per cent settlement rate (70 per cent on the mediation day, 20 per cent shortly thereafter) in its annual report.  Those figures suggest that requiring the parties to attempt mediation, rather than just find out about it, will be worth while in the majority of cases.