This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Simon Hughes' speech on 'Mediation: a central part of family justice'.
I’m pleased to be here at the Strand Palace Hotel at the Family Mediators Association (FMA) Annual Conference. Many thanks to Ruth Smallacombe for the invitation and the welcome from Mr Justice Moylan.
You have a packed itinerary for today. I am really pleased to see speakers from such a variety of disciplines as well as academics.
I accept that these have been difficult times for the sector. I want to take this opportunity to highlight what government has done in this area and to explore what else we can still do to support family mediation. But I would also like to say how much I appreciate your work in the field and particularly the way in which many of you have taken the time to contribute towards recent policy development.
I know that FMA represents mediators from a range of backgrounds and approaches, from lawyers to social workers. I would like to stress that whatever your background the important thing is you are all professional and committed family mediators. Having met many of you at meetings and on visits I know that you are.
I strongly believe in the benefits of family mediation and I am committed to making sure that more people make use of it where it is appropriate and where it avoids the confrontational and stressful experience of going to court.
This does not mean that people will not need to go to court at the end of the process to formalise an agreement or that some cases are best dealt with by the court.
But when people’s relationships come to an end I would like to see them thinking from the start that they can resolve any disputes out of court and without confrontation.
Many people still see the family justice system as inaccessible and intimidating. I want us to make it as accessible and welcoming as possible and learn from the experiences of other countries which have different approaches.
I fully appreciate that practitioners are still feeling vulnerable right now; referrals dropped considerably after April 2013, but I am encouraged by feedback which seems to indicate that the new legislation – on compulsory Mediation Information and Assessment Meetings (MIAMs) - is making a difference and I remain cautiously optimistic.
I have also heard anecdotally that a small shift in attitude is already taking place and that in some areas court users are reporting that court staff are more aware of mediation and doing more to signpost the public to mediation.
Mediation is already used successfully by thousands of people every year, and the frequency of people reaching agreement using mediation is continuing to increase.
In spite of the drop in referrals to MIAMs and mediation the rate of people reaching agreement increased to 69% in April 2013 to March 2014, compared with 65% during the same period for 2012/13.
In my view, this clearly supports our policy drive to increase the number of couples resolving their disputes out of court and shows that where couples have the chance to see what mediation can do for them they are able to reach an agreement. We have always been clear that the MIAM is key to providing the way in – the opportunity to get people through the door.
An increase in referrals to MIAMs alone is not enough. What we really want to see is more people progressing on to mediation and agreeing their own way forward, resolving disputes away from court.
Latest developments in mediation
So what’s new since Lord McNally spoke to you last June?
The law has changed now: on 22 April 2014, section 10 of the Children and Families Act 2014 created the legislative requirement that anyone considering applying to court for an order about their children or finances is now legally obliged to attend a MIAM first, not just expected to – unless exemptions apply such as domestic abuse.
To support this new statutory requirement the President of the Family Division revoked Practice Direction 3A, which contained the Pre-Application Protocol, and issued a new Practice Direction – also effective from 22 April 2014 - reflecting the introduction of the statutory requirement on applicants. The role of MIAMs in assisting parties to resolve disputes was further reinforced through the introduced of a revised private law pathway – the Child Arrangements Programme (Practice Direction 12B).
I recently announced [on 20 August 2014] that we will fund the first single session of mediation in all cases where one of the people involved is already legally aided. In this scenario, both participants will be funded for the MIAM and the first session of mediation.
The Statutory Instrument which will bring about this change will be signed and laid before Parliament in a matter of weeks with implementation approximately 21 days after that.
Funding for this initiative has been secured for the next three years and progress will be reviewed at six-monthly intervals.
I believe that this combination of the compulsory MIAM with the free mediation session will be very effective in drawing more people in to the mediation route.
Most of you will know that I am particularly keen that children are heard in all areas of the family justice process and also in mediation.
Those of you who heard or have read the speech I made at the Voice of the Child conference will hopefully share my view that children and young people must by law have their views heard before decisions are made about their future, and where decisions are made that will impact them. As I said then, it is still too often the case that their views are not heard. Or that the law is interpreted to mean that others can make an assumption about the view of the child or young person – often for the best of intentions and acting in their interest, but nevertheless with the outcome that the child or young person does not feel that their own distinct voice was heard.
It cannot be right that parents can mediate an agreement affecting their child or children and then ask the court to consider making this into a binding order in the absence of the children’s voice being heard. I am determined to reverse the position, where children’s experience of any part of the family justice system leaves them feeling unheard, and as was suggested in recent press, abused.
At that conference I announced that we will involve children and young people more in family justice proceedings by making sure they are listened to by judges. It will be normal practice that, from the age of 10, children and young people in public or private law family proceedings before the courts will, by an appropriate means, be able to express their feelings and wishes to make clear their views as to what is the best resolution of the family dispute in their interest.
Of course how we move from the present court practice to one which implements this change will need careful discussion with all those with proper interests, including the President of the Family Division, Her Majesty’s Courts and Tribunals Service and Cafcass. I am pleased that we all are committed to moving together in the same direction.
My officials have begun working on how we can deliver this commitment in practice. I have commissioned the setting up a small advisory group of experts to improve practice in this area and make sure mediation is focussed on the best outcomes for any children involved.
The group will provide the basis for a dialogue with the family mediation profession about how we make sure that the voice of the child and young person becomes a central part of the process of family mediation too.
This new advisory group will feed directly into the wider context on the Voice of the Child and my commitment to introduce the practice whereby children and young people involved in public or private law proceedings will have access to a judge.
Engaging the profession
Since I took over the family justice portfolio I have been determined to take every opportunity possible to engage directly with you and give you the opportunity to raise your concerns with me face to face.
To that end I hosted a web chat earlier this year, in March, which was followed by the on line ‘Dialogue’. This proved to be a very effective vehicle for a wide range of people to make their views known. We had around 100 users on the web chat at any one time with nearly 380 participants for the whole exercise who posted around 400 comments.
I have also hosted two roundtable meetings to discuss the particular issues faced by the mediation profession and to share ideas about ways to make improvements. These meetings were aimed at reaching a wider group of practitioners and helped to inform the Task Force.
David Norgrove kindly accepted my invitation to set up a Family Mediation Task Force which convened on a number of occasions in the full group and also in sub groups which concentrated specific issues such as suggestions with a financial element and the Voice of the Child.
The ideas from all of the events were considered by the Taskforce which submitted its report in June. Having carefully considered all their recommendations I think we have identified the actions that will encourage and make it easier for the public to access family mediation services.
Reaching beyond the mediation profession, I also wrote to all MPs in June to make sure they were aware of the change in the law on compulsory MIAMs, and that they understand the advantages family mediation can offer.
In this letter I asked them to encourage the constituents they come into contact with, who may well be experiencing family disputes, to use family mediation. The letter also explained that legal aid remains available for the MIAM, mediation and for legal help.
I am conscious we need to do more to raise awareness of mediation, and therefore we have an ongoing programme to do this
Persuading the general public and practitioners to consider non-court based solutions remains an enormous cultural change for all of us.
I believe that we have responded effectively to previous criticism that we were not doing more to raise awareness of family mediation. We have been far from idle.
I have personally taken every opportunity possible to promote mediation through a number of visits and media interviews.
Recently I was able to visit a project in Yorkshire funded by the DWP Innovation Fund. Family Matters Mediate Ltd, in Doncaster, includes Listening to Children Matters which helps separating parents understand the views of their children. Trained consultants explained that it is not about the child deciding the outcome, but about the parents acknowledging that they need to listen to their child’s views.
I was particularly interested to see that the child consultant (who sees the child separately and then feeds their views in to the parents) is professionally qualified. I will be asking the new advisory group to look very carefully at how mediators are trained and accredited.
Our Communications Team has carried out a wide range of activity including:
- refreshing public information materials: including our leaflet and poster to be used in courts and also by mediators to promote themselves locally
- making changes to our video
- placing timely articles in consumer magazines, including Women’s Health and Mature Times
Mediation featured in an EastEnders storyline, reaching up to 10 million viewers. I also spoke recently on Radio Essex which had a 30 minute segment on mediation. I would encourage you to get in touch with your local stations about doing pieces on mediation.
Public information materials have been developed in conjunction with the Family Mediation Council (FMC) and with Professor Liz Stokoe of Loughborough University, who, as many of you will know, has carried out research into the language used to promote mediation.
The leaflet and posters are available on the justice website and the video is available on MoJ’s YouTube channel.
The wider family justice context
I hope that you have all seen the recent joint publication from the Ministry of Justice and Department for Education: ‘A Brighter Future for Family Justice’. I would certainly encourage you to take a look – it’s available on Gov.UK.
This document reviews what has been achieved since the publication of the family justice review, along with a version for young people, and sets out the new landscape for family justice.
As well as the actions noted earlier, we will also:
- be reviewing future Legal Aid Agency (LAA) contracts with mediation services to improve services. LAA and Minstry of Justice (MOJ) will be working on a long-term tendering approach for mediation services. In the interim;
- existing mediation contracts will be extended by 12 months to 31 October 2016. The tender process and registration process will begin next month
- expressions of interest will be invited for new Outreach locations
- an open tender exercise will be held to give new organisations the opportunity to provide publicly funded Family Mediation services while the long-term tender approach is developed. These contracts will be for 01 February 2015 to 31 October 2016
- add a detachable cover sheet on the front page of relevant court application forms to promote mediation and remind the public of the legal requirement to consider mediation before going to court. Final adjustments are being made to the sheet before it is submitted to the President of the Family Division
- build on the existing campaign to promote mediation, with paid for activity to help increase awareness and understanding of mediation, and particularly the availability of legal aid for mediation and Legal Help for mediation
The MOJ is committed to supporting the FMC. We have done this through funding discrete projects and by working closely with them to progress on-going initiatives. These include:
- project managing and funding the redevelopment of their website which now includes information aimed at the public about family mediation and a search tool to “find a mediator”. This site is intended to be the central source of trusted information for the public about family mediation and will be a great help to us in our ongoing promotional activity
- the development of a single accreditation route and professional standards so that the public can be assured of a consistently high quality of service. I am pleased to see that the new standards manual has now been published on the FMC website. You will hear more on this from Dr Stan Lester who is speaking later this morning
- production of a marketing toolkit for family mediators, to provide tips and advice aimed at helping them to market themselves. This is available from the FMC along with the posters and leaflets I mentioned earlier
- we are exploring options, with the FMC, for reforming the management of the mediation sector – building on self-regulatory measures already in place and recommendations made by Professor John McEldowney.
So, this continues to be a time of significant change for the family justice system. I am conscious that we have a long way to go to make sure people have confidence in the system and are able to navigate it easily. With over 250,000 cases in the family courts each year it is vital we get it right.
I am clear that we need to promote and support mediation and encourage people to use alternatives to court to resolve their disputes. People should see this as the starting point.
What is important is that the people involved have ownership of their arrangements and in coming to the decisions they make themselves. Even if a couple applies to court for a consent order to formalise their agreement – this is still a success: not just for government policy but more importantly for the couple involved – because they have taken control and arrived at their own agreement.
I would like to thank you for all of your ideas and enthusiastic collaboration with my department and I look forward to continuing to working with you to help make family mediation better for everybody involved.