Mapping Paths to Family Justice- Session 1 – Research Findings

Mapping Paths to Family Justice-Session 1 – Research Findings Mapping Paths to Family Justice Final Conference British Library, London, 12th June 2014

Mapping Paths to Family Justice- Background to Study Mapping Paths to Family Justice Final Conference

Long term aims of three year study • To provide an up-to-date picture of awareness and experiences of three forms of out of court family dispute resolution: • solicitor negotiations • mediation • collaborative law • To produce a ‘map’ of family dispute resolution pathways and consider which pathway(s) is/are most ‘appropriate’ for which cases and parties? • To consider which (if any) norms are embedded in these processes • To provide research evidence to inform policy and practice

Definitions of FDR used in study • 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).

Study design and methods • Project commenced July 2011 and Advisory Group appointed • Phase One – Two National Surveys – 2011 - 2012 • 2974 (Omnibus) +3,700 (CSJPS) adults, nationally representative. • 6,647 adults -awareness of FDR processes. • 315 adults divorced/separated between1996 -2011, recorded 349 experiences of FDR processes. • Phase Two – Semi-structured Interviews – 2011 - 2013 • Practitioners: nationally spread range of solicitors, collaborators, mediators (40). • Parties (96) (45 men; 51 women) recruited from national surveys and supplemented by other national recruitment strategies, with a mix of legally-aided and non-legally aided parties • 44 had experienced solicitor negotiation • 56 had experienced mediation (across a spread of mediation agencies) • 8 had experienced collaborative law • Phase Three – 13 Recorded sessions – 2013 - 2014 • Recording and analysing lawyer-client interviews (5), mediation sessions (5) & collaborative law meeting sessions (3).

Awareness of out of court Family Dispute Resolution Mapping Paths to Family Justice Final Conference

Phase 1 National Survey Results: Public Awareness of FDRs • 2 surveys– BMRB Omni + CSJPS- varied • BMRB - 2974 respondents • CSJPS – 3700 respondents • 44% BMRB respondents had heard of mediation compared with 72% of CSJPS • 32% BMRB had heard of solicitor negotiations compared with 58% CSJPS • 14% BMRB had heard of collaborative law compared with 22% CSJPS • 45% BMRB had heard of “none of the above”. • Sources of information for mediation • Media/internet (36%)(45%) • Family/friends (32%)(38%) • Solicitor (11%)(10%) • Work/education/personal experience (10%)(4%) • CAB or other advice agency (3%)(2%) • Note contextual differences between surveys.

FDR Awareness – public perceptions • The national surveys both show that there is recognition of the various alternatives to court for resolution of family disputes in the general population, though 45% of the BMRB Omnibus sample had heard of none • There are relatively high levels of public general awareness of mediation, and • Media and internet are key sources of information to the general public about FDRs • There are higher levels among the divorced/separated, but • For those divorcing/separating since 1996, solicitors were the major source of awareness of FDRs, including mediation …

Sources of information – Omnibus divorced/separated sample • 315 (11% of the Omnibus sample) had separated/divorced since 1996. For this group, their sources of awareness were different, with solicitors being the first source of hearing about all FDR processes, including mediation • Sources of information for Mediation of those divorcing/separating • Solicitor (39%) • Family/friends (28%) • Media/internet (15%) • Work/education/personal experience (6%) • CAB or other advice agency (5%) • Sources of information for Solicitor Negotiation of this (pre- LASPO) group • Solicitor (49%) • Family/friends (24%) • Media/internet (9%) • Work/education/personal experience (6%) • CAB or other advice agency (5%) • These sources broadly map onto the experiences within our Party interview sample.

FDR Awareness – public perceptions • Levels of public awareness were associated with age, gender and class: • 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. • Conflation in the public mind between Solicitor Negotiation and Collaborative Law was identified and followed up in our Party and Practitioner Interviews.

Awareness and Choice of FDR • In our (pre-LASPO) party interviews where people had divorced/separated from 2000 onwards, ‘choice’ of FDR was linked to awareness which in turn was linked to practitioner awareness and advice on appropriate FDR • A number of parties identified solicitors with going to court and were unaware of their out of court dispute resolution role through Solicitor Negotiation • Collaborative Law participants were likely to be most aware of all the options and few others were so well-informed • Most people had been unaware of mediation before being advised by their solicitor, although some had heard of it through other means • Most people were steered to their FDR choice by their practitioner without being made aware of other options.

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. • Independent, impartial information about FDR options would help to overcome feelings of being subjected to a sales pitch, or that there was insufficient opportunity to discuss concerns and reservations. • Training for FDR practitioners should routinely include information on other FDRs and would also help increase awareness and informed choice around appropriate options.

How positive or negative have experiences of the processes been? Mapping Paths to Family Justice Final Conference

Experiences of Solicitor Negotiation Around two thirds of people who experienced it were satisfied with the solicitor negotiation process. In particular, people welcomed the support that it offered them at a traumatic point in their lives. “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) There were common criticisms of delay and higher than expected costs, as well as stress and hostility. “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) How positive or negative have experiences of the processes been in the short or longer term?

Solicitor Negotiation: what could be done better? More 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. .

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. “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) “It helped us step along the way.” (Norah)

Process of mediation: an uncomfortable process Some parties found the process extremely hard. “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) Some expressed concerns about power imbalances, and perceived lack of mediator impartiality. “He was all for my husband. I felt like a little naughty school kid sat in a corner.” (Kathy) “And the mediators sort of work it like that. They seem to stand together with the wife, or with the girl. ‘Cos the mediators were all ladies. There weren’t any men.” (Charlie) Parties were also frustrated by the cost of multiple sessions.

Process of mediation: information and advice The distinction between legal information and advice appears to be well maintained by mediators but is not always appreciated by parties. Some felt they had to participate even though they did not expect the process to work; “It was a stepping stone to get out the way, to jump over that hurdle to get to court.” (Stan) Some felt they suffered from a lack of legal advice. All of the parties who were referred to mediation by a solicitor had the benefit of initial legal advice. This will be less common in future.

Mediation: 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.

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. “There was no ‘My solicitor, your solicitor’ sort of thing and it was all comfortable and jolly in places”. (Joshua) The process was seen as more supportive than Mediation, and quicker and less prone to inflame conflict than Solicitor Negotiations.

The Process of Collaborative Law: What could be done better? The main drawback of the process was cost; The four-way dynamics between solicitors and clients could also misfire. “The thing that bothered me slightly was that I had the impression that [her solicitor] and my husband’s solicitor, he’d worked with her, 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) .

Conflict and Emotions in FDRs: key findings For any process to be successful, parties need to be emotionally ready to cooperate and cope with negotiations The Solicitor Negotiation process has an inherent tendency to be emotionally upsetting and to escalate conflict by virtue of being conducted by correspondence. Many people found Mediation to be an emotionally fraught process even if in hindsight it was positive. “I did find that quite helpful, but I also found it just hugely painful as well” (Tilda). Conflict between the parties was a frequent cause of Mediation breaking down. “My ex-husband was very antagonistic. Didn’t provide information, became very aggressive during the Mediation sessions, so I called an end to that.” (Lorna).

Conflict and Emotions: what could be done better? Combining FDR with therapeutic intervention may enhance capacity to reach agreement. [Solicitor] put me on to [counsellor] . Who’s like a mediator, but you can see her just as someone who understands law but as a psychologist as well. So I saw her for a few sessions of counselling. (Glenys,) People who signed up for Collaborative Law tended to be low conflict, though this did not preclude the need for emotional support in the process. “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.” (Jayne)

Focus on the Child’s Welfare: key messages All three processes aim to focus on children’s welfare, and practitioners often focused explicitly on this: “They were very clear with me that it was about the children and not about either of us. It was all about them and responsibility of care, yeah.” (Tilda, Mediation) However, such a focus can be difficult to maintain in practice and requires conscious effort. “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) “It was not child-focused because, maybe we were both unable to see what actually the best outcome was for the child.” (Stan, Mediation) Inclusion of the direct views of children was extremely rare in our data.

The Other Side in the ADR process There is a strong tendency from parties and also practitioners to blame the other side – the other party, the other solicitor, the court processes- for failures in FDR. Practitioners tend to encourage the client’s account of the ex-partner’s mental instability or unreasonable behaviour, which may be a tactic for suggesting a course of action, but also validates entrenched views of the “other” being the problem. While Mediation and Collaborative Law consciously attempt to overcome polarisation of parties, they often engage in subtle (or overt) polarisation of processes.

Comparing FDR Processes: key messages It is clear that the three processes have different strengths which suit different parties and cases. “[Solicitor Negotiation] 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” (Stan) “[Mediation] wasn’t so stressful. Like when you sit with a solicitor it’s a more serious thing, but in there it was quite a comfortable thing to talk about it all, I felt.” (Greg) Failure in one FDR process can put people in a better position to reach a resolution through a different process. Collaborative Law received particularly enthusiastic reviews. Jenny described it as a ‘lifesaver’ “I was satisfied with the process. The fact that it existed was the most important thing and that gave me hope in human nature, the fact that someone had thought of collaborative rather than adversarial.” .

Outcomes of FDR processes: Resolution rates In our party sample, it seems that financial disputes were easier to settle out of court than children issues. There were higher resolution rates for financial matters (around two thirds) than for children’smatters (under half) in our party sample. There were generally higher resolution rates for Mediation than for Solicitor Negotiations. This is likely to be due to differences in the parties as much as differences in the processes: the parties who went to Mediation were generally more willing and able to reach an agreement than those who chose or found themselves in Solicitor Negotiations. Our Collaborative Law parties achieved high resolution rates, particularly on financial matters – but the sample is small (8 parties).

Satisfaction with Outcomes Satisfaction with outcomes is lower than with process for both Mediation and Solicitor Negotiation. Satisfaction with Collaborative Law is very high for both process and outcomes, although numbers are small and parties tend to have higher than average resources. Partial or subsidiary outcomes were identified even where FDR failed, in around half of the cases in each process, although partial outcomes were often a source of dissatisfaction. "Some progress…some better communication, some better understanding of each other’s positions, some interim arrangements, some better understanding of children’s needs. So short of... what you might call a successful outcome, I think there are lots of little victories that can be won." (Henry Sanderson)

Dissatisfaction with outcomes 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. “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.” (Andy)

Reasons for settlement in FDRs: Key messages 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 court or an inability to afford court proceedings, all play a role in settlement for some parties in all FDRs. “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.” (Tilda) .

Unresolved cases in FDRs: Key messages 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. For example, some fathers would not agree to anything less than 50:50 shared care and were still pursuing this.

Longer term outcomes of FDRs: Communication The ‘success’ of FDR processes may be measured both in terms of immediate resolution of the particular dispute(s) and/or in terms of longer term benefits. Overall in our sample, Mediation was seen as improving communication in around 40% of cases, whereas under a quarter of Solicitor Negotiation participants felt they benefited in this way. “We still have the odd niggle, but it’s taught me to... You can’t go over the top having every little minor detail. It’s made it easier. We don’t argue like we used to, and I think it just stems from Mediation.” (Kathy). In Mediation, good communication outcomes were highly correlated with successful resolution.

‘Just’ Settlements? Normative Commitments in FDR

Questions • What normative commitments – conceptions of what would be a ‘fair’ outcome – do parties bring to FDR? • Does this vary according to FDR process? • What norms are embodied in the agreements reached? • Does this vary according to FDR process? • How far does the ‘shadow of the law’ fall on agreements reached in each FDR process? • Does FDR just achieve settlements, or does it achieve ‘just’ settlements?

Predominant norms brought in by parties • Varied by type of matter – children / finances • Varied by gender of parties • Did not vary by FDR process

Practitioners – shadow of the law • Consciousness did not vary by type of practitioner – legal parameters/how a court would be likely to decide • Advice varied by FDR process (obviously) • Information in mediation varied by type of practitioner – lawyer/non-lawyer • Steering varied by type of matter – children / finances

Steering strategies in mediation • Explain legal principles/how a court would decide • Give options based on legal principles/how a court would decide • Neutrally encourage reconsideration/explore alternatives • Reality test • Tell parties agreement is outside parameters (hence likely problems with court approval) • Refer for/strongly encourage legal advice • Flag concerns for lawyers in MOU/record in summary

Predominant norms in outcomes • Fairly consistent between matter types: • Finances varied a little between FDRs: • Shadow of the law: parties much more conscious of being steered in financial matters than in children’s matters

Relationship between Norms and Resolution • Did particular norms or norm combinations make resolution easier or more difficult? • Shared norms assist resolution (obviously) • Different norms or different conceptions of same norms (e.g. primary carer/child welfare/needs) • Issue is not which norms but how strongly they are held • Able to compromise /accept practitioner’s steer or not?

Formal equality – ‘just’ settlements? • Sometimes shared but often a compromise • Fairness to children? • Fairness to primary carer? (mismatch between children and financial arrangements) • Fairness to stay-at-home wife/mother? • More steering / reality testing from practitioners needed in these cases?

Parties and Cases Suited to Particular Processes Mapping Paths to Family Justice Final Conference

Distillation of practitioners’ expertise, parties’ experiences and observations • One size does not fit all • Disposition of the parties more salient than nature of the case • What if there is no choice?

Emotional readiness • "[I]f they come right at the outset very often it’s all a bit raw and it can be a bit difficult then. I mean one of them is almost certainly in a different place on the separation reaction [scale] to the other one. (Melanie Illingworth) • "My overall feeling, even looking back now, that it was all too soon [to mediate]… I feel looking back there should be a temporary [children] arrangement made quickly, and then you need a minimum of, I don’t know, three to six months before you can start talking about anything else. Because when you’re an emotional wreck obviously you can’t make good decisions, and that was really the position that I was in."(Rebecca) • "...when emotions are running high... certain people are not ready to negotiate, especially my ex, who was very bitter and very sore. I think initially she wouldn’t have listened to sense… it would have certainly suited me if we could have negotiated sooner and an outcome had happened sooner, but as far as getting anything out of my ex, I don’t think so."(Jason)

Party-interactive processes • If parties are "friendly towards each other, wanting the best for the child, and are almost mutual to all suggestions, you know, not wanting it all one way and all the other, then mediation would work perfectly“ (Stan) • “I think it’s good to have that option [mediation] there because not everybody is angry and bitter“ (Alison) • "[W]hat you need to see in the client is an ability to appreciate the other person’s point of view and listen... there needs to be an openness to it and a willingness to want to do that…[otherwise] they wouldn’t be suitable for collaborative or mediation“ (Rachel Matthews)

Choice between mediation and collaborative law • Legal aid eligibility / costs • Children/finances • I think the security of solicitors because you have the law behind you...so therefore it worked for me financially... I didn’t feel there was a place for emotion in the finances... Whereas with the children, the mediation, there was a big place for emotion, so that’s how I felt it worked. (Sandra) • Type of assistance needed • Mediation can be "excellent" for parties who have struggled with repeat patterns of behaviour from their relationship but who are committed to learning better communication skills for the sake of their children. (Kirsty Oliver) • "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, settled in collab)

Lawyer-led processes • "It was a very unsupported environment for me...because she [the mediator] obviously had to be studiously neutral… What I felt was that it was not a balanced situation. I was mentally ill, I was poorer, you know. I was the one who had to give up my job, give up my house, and yet it was treated as if there were no power imbalances between us, as if we were both on equal footing and we weren’t. You know, that’s what really bothered me.” (Monica) • “Parties who are more vulnerable are probably more supported in collab. Parties who are, you know, their own worst enemies for whatever reasons...perhaps they are too guilty, perhaps they are just sort of overwhelmed by financial information, then those people are better supported in collaborative.” (Caroline Underwood)

Choice between collaborative law and solicitor negotiations • Availability of collaborative lawyers • Cost • Otherwise suitable for collaborative law • Vulnerable party’s ability to participate • Glenys thought the fact that she had already "done a lot of the grieving" over the breakdown of the relationship meant that she could be in the same room as her husband and negotiate with him whereas if you were still in "a much more raw… really difficult, exposed kind of position" then collaborative law would be more problematic • Advantages to hearing legal advice together? • "Collaborative law where someone clearly needs legal advice within the process as otherwise it is going to be fairly protracted and the other person needs to hear the advice that they are being given." (Kirsty Oliver)

Solicitor Negotiations only • Cases involving third party disputes • ‘Difficult’ parties: controlling, fixed position, clinging to rights, seeking vindication or vengeance, disclosure-shy • “domineering characters....who want to run the show”; parties who “come to the...table with their spreadsheets and try to dictate the process” (Caroline Underwood) • "he felt he shouldn’t have to pay anything at all. He didn’t want to give me anything at all… I mean he is a victim, life owes him, and that was his attitude, that I should just go and take nothing...“ (Miranda) • “The parties that are suited to other forms of dispute resolution tend to be those that think there is only one way and it’s mine, you know.... [I]f they say, “Actually, she is not having any of my pension” and there is no movement from that then there is no point... So it needs solicitors to actually put them straight.” (Hannah Phillips)

Parties • Refusing to make financial disclosure • In denial • Entrenched in strategic position • [I]f you had proposed mediation, you had proposed an exchange of financial disclosure and you were getting no responses whatsoever. Perhaps you had worries, for example, that money might be being spent where it shouldn’t have been spent, then in these situations you have to move to making an application for financial orders.” (Lorna Denton) • “You can't, for example, mediate paternity. So if it’s something that requires a court order as such ... that's for the court’s consideration. Erm the question of is there an absolute conflict of fact that may need to be resolved at court, so for example...was this £100,000 deposit that was put in for the family home, was it a gift from mum’s parents or was it a soft loan from mum’s parents? That's not the sort of thing you can resolve in mediation.” (Gordon Russell)

Specific cases in mediation • “I’ve met a lot of people now through all this and everyone that has...been in an abusive relationship ends up going to court because they’re not going to get... He’s not a decent person you’re dealing with... He can’t do the mediation. ...And the thing is, when they come across, these types of men, they’re very charming and polite and they’re very...you know...so... Yeah. You just should never be put in that situation, anything like that, basically. No.” (Sara)

Mapping Paths to Family Justice- Session 1 – Research Findings