Copyright © 1995 Shelley Day Sclater
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
- The Reform Proposals
- The Law Society
- Solicitors' Family Law Association
- National Family Mediation
- Justice and Fairness in Divorce
- Public or private Ordering in Family Law?
- What about Children?
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The Government envisages that in future lawyers will play a much less prominent role in divorce. This, coupled with the abolition of 'fault', is expected to reduce both the financial and the emotional costs of divorce. Mediation is seen as a process which can render divorce both cheaper and more civilised. Thus, divorce will no longer be primarily a legal adversarial process.
The immediate response to the proposals in the green paper was largely positive. The general media response was very favourable, and the Times was alone among the broadsheets in attempting to make anything like an objective appraisal of the issues. There, Walker (1993) made reference to the folly of making such major policy changes on the basis of mere 'anecdote', in the absence of systematic research, and considered that the 'deprofessionalisation' of divorce would only be achieved at the cost of creating a new quasi-profession of mediators, which would be a worrying development in the absence of any systematic scheme for the registration or regulation of mediators. However, the leader writers generally took the view that the proposals were long overdue and were a cause for optimism about the future of divorce.
The immediate responses from the legal establishment to the green paper was hardly less favourable. Lawyers, however, voiced two main concerns: First, that of the funding and cost of a comprehensive mediation service, and, secondly, the question of the role of lawyers in divorce.
Solicitors' groups were concerned to point out that solicitors' involvement in divorce is not always 'negative', as the green paper seemed to assume, particularly if the lawyers involved adopted the kind of conciliatory approach to dispute resolution advocated by the Solicitors' Family Law Association (SFLA). In addition, lawyers pointed out that the divorce process required trained legal experts to effect it, and that asset division and the management of finance and debt are complex issues, which mediation may be unable to deal with. Lawyers also said that mediation may, in any event, not be appropriate in all divorce cases, particularly those involving domestic violence.
Thus, the immediate response of lawyers' groups to the green paper evinced an acceptance that mediation was probably 'here to stay' and that it represented, with certain provisos, an acceptable way forward. Mediation was to be welcomed, but not as an alternative to the legal process, and only if proper funding for both Legal Aid in family cases and for a mediation service could be assured.
Subsequently, the professional bodies involved, including the Law Society, the SFLA and National Family Mediation (NFM) have provided more detailed responses to the proposals. Understandably, the lawyers' considered response is more critical, whilst that of NFM is less so. In what follows, I want to take up and build on the critical responses and set them in the context of the White Paper proposals. In doing so, I will discuss how far have the concerns of the critics been met, and whether the reforms are adequate to meet the needs of divorcing people.
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Thus, the Law Society, in its considered response to the proposals, sought to question the very basis and assumptions upon which those proposals were based. The Law Society nevertheless recommended that there should be 'greater availability of mediation services in future', subject to the establishment of a regulatory framework, more research into the effectiveness of mediation, and proper funding. The Law Society was also concerned to point out that any expansion in mediation should not lead to any restrictions on individuals' abilities to obtain legal advice, particularly through limitations on the availability of Legal Aid.
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They pointed out that mediation is not suited to everybody, and they echoed the Law Society's concern that not everybody is able or willing to behave amicably in divorce. They said that it was a fallacy to assume that mediation can make people more reasonable. Mediation will be unsuitable where there are complex finances, domestic violence, a power imbalance in the marriage, or where one or other party is obstructive or dishonest. Mediation should be complementary to legal advice and not a substitute for it. In addition they said that one of the factors which underlies the current high costs of divorce disputes is that of the emotional response to separation, and that mediation cannot resolve those emotional difficulties.
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Despite the fact that the Government has consulted widely, many of the concerns of the professional groups have not been remedied in the white paper. The misconceptions underlying the proposals, which the Law Society identified, remain; perhaps most worrying are the assumptions that divorcing people generally will be able to behave in a restrained and co-operative manner, that the abolition of 'fault' and the use of mediation will substantially reduce conflict, and that the state need have no formal role in ensuring justice and fairness between the parties to divorce.
I have argued elsewhere (Day Sclater & Richards, 1995) that hostility and conflict may well be integral components of the psychology of the divorce process, perhaps necessary for the rebuilding of the self when a key relationship breaks down, and that it is overly simplistic to assume that anything short of therapeutic counselling can alter that state of affairs. Many divorcing people will simply be unable, for deep set psychological reasons, to behave rationally and co-operatively. Thus, the white paper overlooks the psychological reality of divorce. Research studies which have attempted to evaluate mediation, and which have been conducted using populations of people who have chosen to mediate, and who are committed at least to trying to resolve divorce disputes amicably and co-operatively, still report a substantial proportion of people who are not able to reach any agreement at all or who reach agreement only on some issues. (Joseph Rowntree Foundation Research Findings, 1994).
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Therefore, the reality is that the reforms will be likely to affect ancillary relief, and, in view of this, the question of justice in relation to the proposed changes should have been addressed. Where couples mediate, the role of the lawyer will be confined to the provision of 'advice and assistance', presumably up to a strict financial limit under the Green Form (paras. 6.17 and 6.18), but the Government envisages that normally it will not be necessary for parties to be legally 'represented' by lawyers in the traditional way (para 6.19). There will be no requirement that couples seek legal advice on the merits of any mediated agreement (para. 6.20), neither will there be any requirement that the agreement be approved by the court (para. 7.38). In other words, there are no mechanisms in place by which the justice and fairness of mediated settlements will, as a matter of course and formal procedure, be checked by those with knowledge of the law. This is a worrying development when considered in the light of the fact that the mediation research upon which the reforms explicitly rely is evaluative research (para. 5.15). Evaluative research can tell us nothing about the relative fairness of mediated solutions as compared with those reached by more traditional means.
This potential for injustice is further underpinned by the white paper proposals for funding of the new system. The intention is that the total costs of the new system should not exceed those which would have been borne by the Legal Aid Fund under the present system (para. 6.27). Mediation services which can satisfy quality standards (yet to be devised) will be funded by block Legal Aid franchises. It is not clear how the cases of those who decline to mediate will be funded. People will be very strongly 'encouraged' to mediate, and it seems that the Government will be likely to implement the recommendation of the Law Commission that the court itself shall have power to refer those people to mediation who previously have failed to appreciate its benefits. Those who receive state funding will have to 'behave reasonably' in the conduct of their cases, on peril of their Legal Aid being withdrawn; (paras. 6.5 and 6.6). Precisely what might constitute such unreasonableness remains an open question, but it would not seem unlikely that it could include a decision not to mediate at all, and to opt instead for assistance from a solicitor. Therefore, there is the possibility that people who wish to utilise legal services in the traditional way will be prevented from doing so, because Legal Aid will not be available to them. On the other hand, there is nothing to stop those who have the ability to pay to retain the services of a lawyer throughout the dispute resolution process, whether that be done by mediation, arm's length negotiation or litigation. The reforms therefore raise the spectre of a two-tier system of justice in family law, based on ability to pay.
Questions about justice and fairness also need to be raised in relation to racial and ethnic issues in divorce. These issues are not addressed in the reforms, which overlook the possibility that marriage, divorce and 'the family' may have different personal, religious and cultural significances in different ethnic communities. To ignore these broader questions is to assume that white, middle class values universally prevail, which is clearly not the case.
Thus, now that the reforms are to begin their route into the statute book, there is a broader range of issues than that which has hitherto been considered which needs to be brought into public debate. In particular, it is necessary to dispel the myth that pervades the reform proposals, that mediation will be a general panacea for all the alleged ills of the adversarial process.
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The Children Act was widely welcomed when it became law, and was seen to represent a long overdue 'rolling back' of the state from private life, which had become a particularly prominent issue in the wake of the Cleveland crisis of 1987. Similarly, the divorce reforms are portrayed as allowing individuals more control over their own lives. The white paper emphasises the value of couples making their own decisions. Mediation is presented as being synonymous with restoring power and control to the parties over both the process of dispute resolution and its outcome. But we need to ask how realistic is this principle of party control, and how will it work in practice?
Mediation cannot be a purely informal and private procedure, because it will necessarily be conducted 'in the shadow of the law'. The reforms, in so far as they impinge on ancillary relief, are presented as procedural only; they are not designed to interfere with the substantive law, and the court will retain the power to make ancillary orders and to approve mediated agreements. Further, mediators must negotiate a very thin dividing line between the giving of information (including legal information), and the provision of advice. The boundary between the two is a very difficult one to draw, not least because 'information' on its own is of little use to someone embroiled in a divorce dispute. They want to know how that information will apply to their particular case, and any response to that question amounts to advice. Therefore, the shadow of the law will remain, but the procedural changes may introduce other changes which affect the nature of settlements reached.
In the provision of 'information', mediators have an opportunity to impose, however unwittingly, their own views and assumptions about what would constitute an appropriate settlement on the parties. That this can happen in practice has already been shown in research carried out by Dingwall and his colleagues (1994). They express concern over the lack of accountability of mediators in the light of their findings that mediators, however unwittingly, do exercise influence over both the process and the outcome of mediation. Therefore the assumption that mediation vests control of the process and the outcome of dispute resolution in the hands of the parties is open to question. The overt and co-ercive power of the state, as represented by the adversarial process, has merely been replaced by the less visible power of the mediator, which may manifest itself in the unspoken assumptions with which the mediator works and in the common-sense views which they hold. The dominant discourses of family law are fast becoming those of 'welfare', to the detriment of 'justice'; and the power of those discourses is likely to be reflected in the practices of mediators.
For example, consider the question of the balance of power within the marital relationship. The reform proposals seem to assume that the 'couple' or the 'family' have an identity of interests, that there can be a single negotiated outcome which will suit both or all of them, and that mediation can help them reach that solution in an amicable way. However, this ignores the multiple age, gender and resource-based power imbalances inherent in marital and family relationships. The reform proposals make frequent reference to the interests of children; those 'interests' are seen to be independent of those of the parents, and the 'parents' are portrayed as a gender neutral category, in a way which obscures the social power relations of gender, and between mothers and fathers.
Brophy (1985, 1989) has discussed gendered power relationships in the context of 'custody'. Writing from a feminist perspective, she argues that the conception of 'children's interests' in case law, prior even to the explicit gender neutrality of the Children Act, was formulated in such a way as to have become synonymous with an extension of father's 'rights' over children. But is has become impossible for mothers to argue against these developments, because it is no longer appropriate to appeal to 'rights' at all. Smart (1991) has argued that the welfare based language of family law denies mothers a voice. The gender-neutral law may conceive of mothers and fathers doing the same things in relation to their children, but the problem lies in the fact that the same practices, carried out by women and by men, have different meanings, because those practices are understood with reference to much wider ideologies about what it is both natural and appropriate for mothers and fathers to do. Women may have achieved formal equality with men before the law, but, as Smart argues (1989), they still lack substantive equality. There are still a multitude of ideologies and practices which place women in a disadvantaged position in relation to men, and as long as this situation pertains, the gender-neutral concept of parenting in family law cannot but continue to discriminate against women. Therefore, the reform proposals overlook the question of gendered power in families, and in doing so they render the specific interests of women invisible. The power of these dominant ideologies is likely to be reflected in the 'information' which mediators provide, for example, about the effects of divorce on children or in their assumptions about appropriate parenting patterns after divorce.
Bottomley (1985) has argued that we should not be too hasty in moving away from the protections for the weaker party which formal justice and a framework of rules has to offer. The procedural safeguards of the formal legal process are in danger of disappearing with the welfare based approach. Formal family law may not be perfect, and itself may perpetuate and reproduce gendered power imbalances, but it is still true to say that lawyers do have the means to enforce rights and to mitigate power imbalances in a way which is not open to mediators. In so far as the reform proposals seek to reduce the role of lawyers in divorce, the party with the more limited resources, which will most often be the woman, will be likely to suffer. This is one conclusion also reached by Dingwall and his co-workers. Kaganas and Piper (1994) have pointed out that proposals which ignore power imbalances of an extreme form, such as where there has been violence or intimidation during the marriage, will be likely to result in a decreased incidence of exposure of abuse, thereby putting victims further at risk. Bottomley has expressed concern that mediators themselves may perpetuate existing gender inequalities, simply by being the purveyors of dominant social values which are oppressive to women.
A recognition of gendered power imbalances raises the question of the limits of 'co- operation' in family disputes. These limits are also called into question if the realities of the psychology of separation and divorce are taken into account. The breakdown of an intimate relationship almost invariably involves recriminations, conflict and anger, as people struggle to come to terms with the loss and to re-establish themselves as single individuals. In the absence of divorce counselling, to help people deal with these emotions, co-operation in mediation can only be achieved at the expense of sidelining or burying these emotions, and again the weaker party will be likely to lose out.
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This assumption is overly simplistic. First, there is no guarantee that the increased use of mediation will in fact result in a reduction of conflict. Social scientific findings on this point are equivocal, and the research which might help us give a clearer answer to this question has not yet been done. Until that research is done, the reform proposals will remain utopian. Secondly, there may be many forms and manifestations of 'conflict'; these forms may have diverse roots and a variety of expressions. Social scientific research can not yet tell us about precisely how which types of conflict affect which children, in what ways and in what circumstances. Neither do we know much about the processes by which 'conflict' has an adverse impact on children. In the light of our woeful ignorance about these issues, it is not enough simply to assume that mediation will be good for children. Until such time as we do have a better understanding, it would be possible to protect children's interests, for example, by giving children the mans to express themselves either by the provision of counselling services or by providing them with independent representation of the sort commonly used in public law cases. But the white paper is silent on explicit provisions for children.
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H.M. Government (1993) Looking to the Future: Mediation and the Ground for Divorce, A Consultation Paper. Cm 2424. London; HMSO.
H.M. Government (1995) Looking to the Future: Mediation and the Ground for Divorce, The Government's Proposals. Cm 2799. London; HMSO.
Walker, David (1993) 'Divorce without Tears?' The Times, 7 December 1993.
Law Society (1994) Fairness for Families: The Law Society's Response to the Consultation Paper. London; Law Society.
Solicitors' Family Law Association (1994) Response to the Lord Chancellor's Dept. Consultation Paper. S.F.L.A.
National Family Mediation (1994) Looking to the Future: Mediation and the Ground for Divorce. A Response from National Family Mediation. London; N.F.M.
Day Sclater, Shelley and Martin Richards (1995) 'How Adults Cope With Divorce: Strategies for Survival'. 1995 Family Law: 143-147.
Joseph Rowntree Foundation, Social Policy Research Findings No. 48, February 1994.
Dingwall, Robert and David Greatbatch (1994) 'Divorce Mediation: The Virtues of Formality?' pp. 391-399 in J Eekelaar and M Maclean (eds.) A Reader on Family Law. O.U.P.
Brophy, Julia (1985) 'Child Care and the Growth of Power: The Status of Mothers in Custody Disputes', pp. 97-116 in J Brophy and C Smart (eds) Women in Law. London; R.K.P.
Brophy, Julia (1989) 'Custody Law, Child Care and Inequality in Britain', pp. 217-242 in C Smart and S Sevenhuijsen (eds) Child Custody and the Politics of Gender. London; Routledge.
Smart, Carol (1991) 'The Legal and Moral Ordering of Child Custody', Journal of Law and Society 18: 485-500.
Smart, Carol (1989) Feminism and the Power of Law. London; Routledge.
Bottomley, Anne (1985) 'What is Happening to Family Law? A Feminist Critique of Conciliation', pp. 162-187 in J Brophy and C Smart (eds) Women in Law. London; R.K.P.
Kaganas, Felicity and Christine Piper (1994) 'The Divorce Consultation Paper and Domestic Violence'. 1994 Family Law 143-146.