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)  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.
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