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Hong Kong Law Reform Commission |
"As a non-adversarial dispute resolution process, family mediation is guided by the assumption that separating and divorcing couples can reach an agreement fair to both parties through their own negotiation. It has gained acceptance over the years and is now practised in a growing number of countries .... " [103]
3.1 In
our Consultation Paper, we reviewed in detail the non-adversarial dispute
resolution approaches adopted in various jurisdictions, including:
England;[104] Australia and New
Zealand;[105] Canada and the
United States;[106] Mainland
China, Japan and Singapore.[107]
In this report, we focus on the dispute resolution systems of England and Wales,
and, in the next chapter, Australia and New Zealand, as a number of our final
recommendations are based on particular aspects of these
systems.
3.2 Before embarking on our review of these overseas models, it
is useful to reiterate the objectives of the mediation process as outlined in
Chapter One. Parker and Parkinson note that mediation encourages direct
communication between the spouses and encourages them to negotiate future
arrangements for the
children.[108] Mediation can help
where an “emotional” divorce has not yet taken place in conjunction
with the legal and financial divorce. If the “emotional divorce”
does not take place then the spouses may “remain enmeshed in conflict
with harmful consequences not only for themselves but also for their
children”.[109]
3.3 Parker
and Parkinson stress early intervention, as “research clearly indicates
that if access is not agreed at an early stage it is more difficult to establish
regular access subsequently, after contact has been broken between the children
and the parent who left home.”
[110] Another research
finding was that the arrangements parents make at the time of separation
generally set the pattern for the
future.[111] Parker and Parkinson
suggest that mediation should take place while the parties await a grant of
legal aid or a court hearing date to be set. They conclude that:
“ideally [mediation] and legal advice should proceed in tandem, each helping the other to provide the maximum assistance to couples in the process of separation and divorce.” [112]
3.4 The
writers also note that suggestions about children’s needs and feelings may
be more acceptable to parents if they are offered by a neutrally placed mediator
who has an explicit professional concern for the family as a
whole.[113]
3.5 Davis has
suggested that the introduction of formal mediation appointments by the court is
important, because such procedures “provide a tangible manifestation of
the court’s commitment to a settlement seeking approach.” Other
commentators note that mediation should not be seen merely as an efficient
processing of a dispute. As most cases settle anyway, mediation should be
assessed in terms of its impact on the timing and quality of divorce
settlements.[114]
3.6 English family laws, especially since the Children Act 1989,
“have been moving away from the traditional adversarial notions of
rights and justice towards that of welfare.”
[115] The changed emphasis on
incompatibility rather than fault is more likely to promote
negotiation.[116] In principle,
it should also lead to a reduction in the number of contested cases that the
adversarial system would otherwise have to deal
with.[117]
3.7 The focus
of the English system has been on encouraging mediation as a way of resolving
matrimonial disputes before proceedings for divorce get under away. The
arrangements for the children will be expected to be determined before a divorce
order can be applied for or made. The fact that such arrangements have been
made will also be evidence that the marriage has broken down
irretrievably.
3.8 To reflect the changes of the Children Act 1989, a Practice
Direction was issued in 1992 which provides that a district judge, at any time
while considering arrangements for children, can direct that the parties attend
a “conciliation”
appointment.[118] Under the terms
of the Practice Direction, the district judge attends with the parties and their
legal advisers. If the dispute is not settled at the initial meeting before the
district judge and welfare officer, the parties alone attend before the welfare
officer. If the conciliation is unsuccessful, the Practice Direction provides
that:
“the district judge will give directions (including time-tabling) with a view to the early hearing and also disposal of the application. In such cases the district judge and court welfare officer will not be further involved in that application.” [119]
3.9 If
the conciliation appointment has been concluded, the district judge who had been
considering the arrangements for the children will issue a certificate that the
court has complied with section 41 of the English Matrimonial Causes Act
1973.[120]
3.10 The special procedure system, under which undefended
divorces were granted without the parties’ attending, applies to the vast
majority of divorce petitions.
3.11 Initially, a children’s
appointment system was also introduced, so that the children’s upbringing
could be fully investigated.[121]
However, in a schedule to the Children Act 1989, the children’s
appointment provision was
abolished.[122] Now the
arrangements for the children are examined in private, “and almost
invariably in the absence of the parties or their representatives by a district
judge whose role is greatly
circumscribed”.[123]
3.12 In 1995, the Lord Chancellor’s Department, in a White
Paper, Looking to the Future - Mediation and the Ground for
Divorce,[124] suggested the
following reforms:
(1) a “no fault”, “process over time” divorce process should be introduced
(2) there should be increased information about the divorce process through mandatory divorce information sessions
(3) couples would be expected to use mediation rather than litigation to resolve their disputes about divorce and ancillary matters
(4) couples in receipt of legal aid would have to use mediation unless they come within exclusion criteria (for example, violence), and
(5) legally-aided clients will have limited access to legal advice and no representation on the basis that mediation will have resolved their disputes.
3.13 The
Family Law Act 1996 was framed to implement the proposals contained in the White
Paper. Part I of the Act deals with the general principles of the legislation
and Part II with changes to the substantive law on divorce and
separation.[125] Part III
introduced amendments to the Legal Aid Act 1988 to include legal aid for
mediation in family
matters.[126]
3.14 Although
the legislation was enacted in July 1996, the timetable for its implementation
was anticipated to be much later. This was to give time for various pilot
projects on information sessions and mediation to proceed and be
evaluated.[127] The first
information meeting pilot project commenced in June 1997 in five locations.
More pilots were launched in October 1997 and January
1998.[128]
3.15 Section 5 of the Family Law Act 1996 provides that a statement
of marital breakdown must be filed by a party or the parties before a marriage
will be taken to have broken down irretrievably.
3.16 Section 8 of the
Act provides that the party making such a statement must attend a compulsory
information meeting not less than three months before making the
statement,[129] and that the other
party must attend before making any application with respect to a child of the
family to the court or contesting any application.
3.17 It was intended
that further details of the scheme were to be contained in subsidiary
legislation. In particular, the regulations would specify what information
about marriage support services, the importance of the welfare of the child,
mediation, the availability of independent legal advice, legal aid, and the
divorce process would be furnished to the parties at the section 8 information
sessions.[130] It was also
provided that parties would have the opportunity of attending a marriage
counsellor after the information
meeting.[131]
3.18 Under
the Family Law Act scheme, parties were to receive relevant information through
three possible avenues: the section 8 information meetings noted above, as well
as through lawyers[132] and the
courts who could refer the parties for an information meeting about
mediation.[133] This latter
information meeting was distinct from the information meeting provided under
section 8,[134] and was more like
a preliminary meeting prior to an intake session for mediation. Its purpose was
to enable “an explanation to be given of the facilities available to
the parties for mediation ... and of providing the parties with an opportunity
to agree to take advantage of those facilities.”
[135]
3.19 In England, mediation was perceived as the preferred method of
dispute resolution for divorce and children’s cases, which had for some
time been consuming a disproportionate share of the legal aid budget. The Lord
Chancellor therefore proposed in a green paper on legal
aid[136] that suppliers of
mediation would be eligible for contracts for legal aid
services.[137] It was intended
that funding for this scheme would come from monies diverted from the legal aid
funding of litigation.
“The Government does consider ... that family mediation is both more effective and more suited to resolving the kinds of problems that arise in most family cases than representation in negotiations by solicitors, or litigation.” [138]
3.20 Mediation would not be compulsory but advisers would have to
record acceptable reasons for refusal to
mediate.[139] Acceptable reasons
would be listed in guidelines and include cases involving domestic violence or
care orders.[140] So,
“point blank refusal to mediate would not be considered a good reason,
and the solicitor [on legal aid] would not be able to represent a client who
could offer no reason for their decision not to choose to mediate.”
[141] This approach was taken
because research had indicated that at least one party usually started off by
refusing even to consider mediation, but once they had visited a mediation
service and had received a personal explanation of how mediation worked and of
its benefits, they would change their minds and would be willing at least to
attempt
mediation.[142]
3.21 The provisions relating to mediation were contained in Part III
of the Act.[143] Section 27(3) of
the 1996 Act provided that legal aid for mediation would not be granted unless
“mediation appears to the mediator suitable to the dispute and the
parties and all the circumstances.” The Act also provided that a
person should not be granted legal representation unless he had attended a
meeting with a mediator to determine the suitability of mediation and if it was
suitable, “to help the person applying for representation to decide
whether instead to apply for
mediation.”[144]
Relevant exceptions were proceedings under those parts of the Children Act 1989
which dealt with protection. Provision was made in section 28(3) for the
legally assisted person to pay a contribution towards the costs of
mediation.
3.22 Much of the detail involved in legal aid for family
mediation was left to the
regulations.[145] These provided
that the mediator should assess the means of the client before providing
mediation. Notwithstanding any privilege between them, the mediator was not
precluded from disclosing to the Legal Aid Board any information which related
to mediation provided to a legally assisted person which would enable the Board
to discharge its
functions.[146]
3.23 The
Act stipulated that any contract for the provision of mediation should require
that the mediator comply with a code of
practice.[147] The mediator would
be required to:
“have arrangements designed to ensure that the parties are encouraged to consider:
(a) the welfare, wishes and feelings of each child; and
(b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.” [148]
3.24 The changes in England proposed in the family dispute resolution
system and the legal aid system were paralleled by changes proposed in the civil
justice system of the courts.
3.25 Lord Woolf, in his interim report on
the civil justice system in England and
Wales,[149] criticised the present
court system as being unequal, expensive, uncertain, slow, complicated,
fragmented and adversarial. He stated that, “the key problems are
cost, delay and complexity which stem from the uncontrolled nature of the
litigation process.”
[150]
3.26 Although
Lord Woolf did not deal specifically with reform of the family court system in
his interim report, his proposed reforms have relevance for case management, and
for making alternative systems of dispute resolution (ADR) available, and for
encouraging their use. The first pertinent recommendation is:
“Where there is a satisfactory alternative to the resolution of disputes in court, use of which would be an advantage to the litigants, then the courts should encourage the use of this alternative; for this purpose, the staff and the judiciary must be aware of the forms of ADR which exist and what can be achieved.” [151]
3.27 Lord
Woolf recognised that “the role of ADR can be of great value to the
parties and the court in achieving expedition and in the saving of expense to
the parties and the saving of resources for the court.”
[152] His objectives included
that:
(a) the parties should settle their disputes before resorting to court whenever it is reasonable to do so. Where litigation is unavoidable, it should be conducted with a view to encouraging settlement at the earliest appropriate stage, and
(b) where there is an appropriate ADR mechanism which is capable of resolving a dispute more economically and efficiently, then the parties should be encouraged not to commence or pursue proceedings until after they have made use of that mechanism.[153]
3.28 Lord Woolf recognised that the absence of legal aid for ADR
might be a reason for its relatively low use. He suggested that the use of an
ADR scheme, if available, should be taken into account when a legal aid
certificate for court was being
considered.[154]
3.29 In
his final report, Access to
Justice,[155] Lord Woolf
recommended legal aid funding for pre-litigation resolution of disputes and for
ADR. It was proposed that at the case management conference and pre-trial
review, the parties should be required to state whether the question of ADR had
been discussed and, if not, why not, and if so, with what result. In deciding
on the future conduct of a case, it was proposed that the judge should be able
to take into account the litigant’s unreasonable refusal to attempt ADR.
Additionally, the court should take into account whether the parties behaved
unreasonably in the course of ADR.
3.30 Lord Woolf recognised that
lawyers may interpret a suggestion to use ADR as a sign of weakness. Therefore,
he encouraged judges to suggest to the parties that substantial costs might be
avoided by the use of ADR. This was only to occur when the parties had not
discussed ADR. Lord Woolf reserved for consultation the question of whether an
unreasonable refusal to resort to ADR should be a relevant factor in deciding
costs. In his final report he suggested that orders for costs should reflect
not only the outcome of proceedings, but also the way in which the parties or
their legal representatives had conducted their cases.
3.31 Other
recommendations included that the Lord Chancellor and the Court Service should
treat as one of their responsibilities promoting the benefits of ADR to the
public. Lord Woolf’s reports stressed the need for the system to become
more responsive to the needs of litigants. This would be achieved by providing
more information to litigants through leaflets, videos, telephone helplines and
information technology. Court staff should provide information and help to
litigants on how to progress their cases, and there would be ongoing monitoring
and research on litigants’
needs.[156]
3.32 The English Law Society conceded that it may be legitimate to
require parties to consider mediation before using the courts in circumstances
where mediation could be justified on the ground of cost effectiveness and where
it did not undermine public
confidence.[157]
3.33 The Law Society accepted that “the state’s
obligation to provide an authoritative means of resolving disputes need not
imply unrestricted access to the courts for all disputes.”
[158] However, in the
Society's view, any restriction must apply to all potential litigants not just
to those who are legally aided. In their view, this would ensure equal access
to justice and avoid alternative schemes degenerating into second-rate
alternatives used only by the
poor.[159] To ensure fairness,
which requires equal access and choice, compulsory mediation was unacceptable,
however.[160]
3.34 The Law Society urged more measures to promote earlier
settlements.[161] In defence of
solicitors, it said that if they were only motivated by money, they would not
settle 95% of cases, albeit at a late stage. The Society acknowledged that
court-door settlements were particularly inefficient as they do not save very
much in costs unless the trial was scheduled to last some weeks, as brief fees
and cancellation fees for experts often still had to be
paid.[162]
3.35 The Law Society was disappointed that Lord Woolf did not make
specific recommendations on a court-based pilot project in mediation. In the
Society's view, until there was more research into ADR, and a wider network of
mediators available, a judge would not be able to properly assess a
litigant’s refusal to undergo
ADR.[163] The Law Society
recommended that proper funding should be provided for experimental schemes on
court-annexed mediation, “to gather enough experience to demonstrate
what benefits can be secured.”
[164]
3.36 In January 2001, the Lord Chancellor
announced[165] that Part II of the
Family Law Act 1996, which had not yet been implemented, did not meet Government
objectives of saving marriages or helping divorcing couples to resolve problems
with a minimum of acrimony. The announcement said that the Government would
therefore ask Parliament to repeal Part II of the Act in due
course.
3.37 As we noted earlier in this chapter, the provisions of Part
II of the Family Law Act 1996 proposed to change the arrangements for divorce so
that a no-fault, "process over time" procedure would be introduced to replace
the existing system. However, the Government has now concluded that "[t]he
complex procedures in Part II would be likely to lead to significant delay and
uncertainty in resolving arrangements for the future."
[166] The Government was
concerned that this delay would not be in the best interests of either couples
or their children. The Lord Chancellor was quoted as saying that:
"The Act's complexity is likely to cause a great deal of uncertainty over the divorce process which will be unhelpful for families at what is always a difficult and emotional time." [167]
3.38 Also central to Part II of the Act were the compulsory
information meetings proposed under section 8 of the Act, which were intended
(as it proved, perhaps unrealistically) to serve the dual purpose of helping
couples either to save their marriages or to end them with minimum distress and
acrimony. In relation to these, the announcement stated that:
"Different types of information meetings have been tested in pilot schemes for two years. But the research concludes that none of the six models of meeting was good enough for the implementation of Part II on a nationwide basis." [168]
3.39 The
research had indicated that, although those attending the meetings had valued
the provision of information, the particular models of information meetings that
were piloted in England were not effective in helping most people to save their
marriages (one of the emphasised objectives of the meetings), as the meetings
came too late. The evidence showed that the meetings tended to incline those
who were uncertain about their marriage towards divorce. Other shortcomings
with the information meeting models that were piloted were that:
"They were too inflexible to provide people with information tailored to their personal needs. In addition, in the great majority of cases, only the person petitioning for divorce attended the meeting, but marriage counselling, conciliatory divorce and mediation depend for their success on the willing involvement of both parties." [169]
3.40 In
terms of the way forward, it was stated that:
"The Government will build on the evidence provided by research to consider how best to provide families experiencing relationship difficulties, in particular those with children, with the information and support that they want at the time that they need it." [170]
3.41 In addition to the pilot studies which were carried out on
information meetings, a research study was commissioned by the English Legal
Services Commission (formerly the Legal Aid Board) to monitor the mediation
component of the Family Law Act
reforms.[171] The various
objectives of this study[172]
included determining:
3.42 The study made an extensive series of findings based on the
particular English mediation services environment that was tested. These
findings are summarised below:
Types of cases
The mediation experience
The mediation process
Mediation agreement rates
The cost of each mediation case paid for by the government
Impact of mediation upon applications for legal aid
The impact of mediation upon lawyer costs
Problems in comparing mediators and lawyers
The need to develop independent measures of value
The future of mediation
3.43 The English reforms in this area are still clearly in the process
of development. While the findings of their recent research studies are of
general interest, they must be viewed, of course, within the particular context
of the English family dispute resolution system and their mediation services
sector. It would therefore be inappropriate to draw any direct correlations
between survey findings in England and our system here in Hong Kong which has
its own unique cultural conditions and legal framework.
[103] Hong Kong Polytechnic University, Evaluation Study on The Pilot Scheme on Family Mediation: Interim Report (Apr 2002), at para 2.
[104] See HKLRC Subcommittee on Guardianship and Custody, Consultation Paper on Guardianship and Custody (Dec 1998), at Chapter 8. Paras 8.4-5, 8.9-11, and 8.19-8.36 of that chapter were substantially adopted from an unpublished dissertation by Paula Scully, (then) Secretary of the Sub-committee, entitled “Obstacles to Referral, Planning and Implementation of Family Mediation as a Dispute Resolution Process in Hong Kong; Reflections based on Foreign Systems” (Apr 1996).
[105] See HKLRC Subcommittee on Guardianship and Custody (1998), above, at Chapter 9. Paras 9.22-3, 9.27-8, 9.31-5, 9.39, 9.44-7, 9.56-63, 9.76-9.89, 9.92-5, and 9.107-108 of that chapter were substantially adopted from Scully (1996) above.
[106] See HKLRC Subcommittee on Guardianship and Custody (1998), above, at Chapter 10.
[107] Same as above, at Chapter 11.
[108] Parker & Parkinson, ”Solicitors and Family Conciliation Services-a basis for professional co-operation,” Family Law (1985) vol 15, 270 at 272.
[109] Same as above.
[110] Same as above, at 273.
[111] Mitchell, Children in the middle (1985).
[112] Parker & Parkinson (1985), above, at 274.
[113] Same as above.
[114] In 1989, a research team from Newcastle University had carried out a study on child-focused mediation (see Ogus, Walker and Jones-Lee, Report to the Lord Chancellor on the costs and effectiveness of conciliation in England and Wales (Mar 1989)). Its findings (at 43) were that: 62% of the clients attending the mediation services surveyed were concerned only with child contact. 60% of the mothers had sole custody and 8% of the fathers had sole custody. In 28% of cases, the children lived with both parents and in 4% they shared time between the parents. The researchers (at 42) expressed concern as to the limited amount of time spent in comprehensive mediation addressing children’s issues. If the parties presented pre-arranged plans for the children they would generally be accepted, but financial pre-arranged plans were usually opened up for further discussion. The average time for a child focused mediation was 3 hours compared to 12.7 hours for comprehensive mediation (see 48-49).
It was noted that the clients in child focused mediation were less satisfied with the outcome than the clients in comprehensive mediation - 38% were satisfied and 26% were dissatisfied. In comprehensive mediation, over 50% were satisfied and 18% were dissatisfied. However, in looking at the broad objectives of mediation, beyond just focusing on the outcome, higher satisfaction was noted. In the child focused mediation, 61% agreed that it protected the best interests of children (5% disagreed), and it “sorted out custody and access” in 60% (10% disagreed). It also helped improve communication (53%) (though 12% disagreed) and it clarified areas of disagreement (59%) (6% disagreed).
[115] Davis, “Conciliation and the Professions,” Family Law (1983) vol 13, at 6.
[116] Mediation has had a long history in England. As far back as the Finer Committee report in 1974 (Report of the Committee on One-Parent Families (1974)), “conciliation” was recommended as an established part of the divorce court process. The conciliation movement gathered momentum in the 1980’s. The Booth committee in July 1985 (The Hon Mrs Justice Booth, Report of the Matrimonial Causes Procedure Committee (1985)) endorsed the value of out of court conciliation, and, with the publication of its report, a clear line of demarcation was drawn between conciliation services and the activities of welfare officers.
[117] Davis (1983), above. This has not necessarily been proven true in practice, however: see discussion in 'More recent developments' below in this chapter.
[118] Practice Direction (Family Division: Conciliation) [1992] 1 WLR 147. Applications for orders for residence (similar to custody) or contact (similar to access) under section 8 of the Children Act 1989 would be compulsorily referred for an appointment. An application for a ‘prohibited steps’ (actions which the other party would not be able to take) or ‘specific issue’ (a particular point on which the court has made a determination) order would be referred only if the applicant requested it. A summons for wardship where orders under section 8 were sought, could also be referred for a conciliation appointment.
[119] Practice Direction (Family Division: Conciliation) [1992], above.
[120] Provision is also made that urgent applications will be referred to the district judge of the day to decide whether the parties are to be referred to conciliation: see same as above.
[121] English Matrimonial Causes Rules 1977, SI 1977/ 334, rules 33(3) and 48.
[122] English Children Act 1989, Schedule 12, para 31.
[123] Cretney, “Family Law - a bit of a racket,” New Law Journal (Jan 1996), 91 at 93.
[124] (April 1995: Cmnd 2799), HMSO. The department had published a Consultation Paper of the same name in December 1993 (Cmnd 2424).
[125] This Part of the Act has never been brought into force, and may, in due course, be repealed: see discussion under 'More recent developments' below in this chapter.
[126] Part III of the 1996 Act (which amended the Legal Aid Act 1988 in relation to the provision of state-funded mediation) has since been repealed and incorporated into the Funding Code for the Community Legal Service (which replaced the former Legal Aid Board) following repeal of the 1988 Act by the Access to Justice Act 1999: see Schedule 15, Part I, Access to Justice Act 1999. See also discussion under 'More recent developments' below in this chapter.
[127] An Advisory Board on Family Law was established to advise on the implementation and operation of the Family Law Act 1996, including the mediation and information meeting pilots.
[128] The findings from these pilot schemes are summarised below in this chapter under 'More recent developments.''
[129] Exceptions were to be prescribed in the regulations. In Parliament the Lord Chancellor gave examples such as the house-bound, the disabled, those who risked violence by going to a particular place and those in custody.
[130] English Family Law Act 1996, Section 8(9).
[131] English Family Law Act 1996, Section 8(6)(b).
[132] Section 12(2) of the Act gives power to the Lord Chancellor to make rules requiring a legal representative to certify whether he has informed his client about the availability of mediation and marriage support services, and whether he has given his client names and addresses of persons who can help with reconciliation and mediation.
[133] English Family Law Act 1966, Section 13.
[134] English Family Law Act 1966, Section 8(6) defines an information meeting to mean: “a meeting organised for the purpose of providing those attending with relevant information about matters which may arise in connection with the provisions of, or made under, this Part or Part III and giving an opportunity to attend a marriage counsellor and encouraging the parties to attend him or her.”
[135] English Family Law Act 1996, Section 13 (a) and (b).
[136] Lord Chancellor's Department, Legal Aid - Targeting Need (1995: Cmnd 2854).
[137] The implementation plan for piloting of franchise contracts by the Legal Aid Board for family mediation services commenced in May 1997: see Legal Aid Board, Franchising family mediation services (Feb 1997).
[138] Lord Chancellor's Department (1995), above, at para 9.7.
[139] Same as above, at paras 9.7 and 9.8.
[140] Same as above, at para 9.8.
[141] Same as above.
[142] Same as above, at paragraph 9.11.
[143] As noted in an earlier footnote, Part III of the 1996 Act (which amended the English Legal Aid Act 1988 in relation to the provision of state-funded mediation) has since been repealed and incorporated into the Funding Code for the Community Legal Service (which replaced the former Legal Aid Board) following repeal of the 1988 Act by the English Access to Justice Act 1999: see Schedule 15, Part I, Access to Justice Act 1999. See also discussion under 'More recent developments' below in this chapter.
[144] Section 15(3F)(b) of the English Legal Aid Act 1988 as inserted by section 29 of the Legal Aid Act 1996. It was proposed that the implementation of section 29 would be piloted in two areas initially which would assist in planning implementation throughout the country.
[145] The English Legal Aid (Mediation in Family Matters) Regulations 1997, (SI 1997; 1078) in force on 1 May 1997.
[146] Same as above, at Rule 5.
[147] An example would be the mediator ensuring that parties participate freely and not influenced by fear of violence or harm: see section 13B(7) of the Legal Aid Act 1988 as inserted by section 27 of the Family Law Act 1996.
[148] Section 13B(8) of the English Legal Aid Act 1988 as inserted by section 27 of the Family Law Act 1996.
[149] Access to Justice, Interim Report to the Lord Chancellor (Jun 1995).
[150] Same as above, at 1.
[151] Same as above.
[152] Same as above, at Chapter 18, para 25.
[153] Same as above, at Chapter 4, para 7.
[154] Same as above, at Chapter 18, para 35.
[155] This was issued on 26 July 1996.
[156] Since then, the Lord Chancellor’s Department has published a comprehensive booklet in plain English, Resolving Disputes Without Going To Court, and the important study, Paths to Justice: What People Do and Think About Going to Law (1999) by Prof Hazel Genn, has been completed.
[157] "Making Justice Work," English Law Society submission to the Lord Chancellor’s Department’s fundamental review of expenditure on civil litigation and legal aid (June 1994), at para 2.11.
[158] English Law Society (1994), above, at para 3.27.
[159] Same as above, at para 3.28.
[160] Same as above, at para 2.12.
[161] The English Law Society’s first submission to Lord Woolf’s Review of Civil Justice, March 1995.
[162] English Law Society (1994) above, at para 8.1.
[163] “The Law Society’s Provisional Response,” Aug 1995, at para 9.
[164] English Law Society (1994), above, at para 3.24.
[165] See press release issued by the Lord Chancellor's Department, "Divorce Law Reform - Government Proposes to Repeal Part II of the Family Law Act 1996" (16 Jan 2001, No 20/01), available at http://www.lcd.gov.uk/pressnfr.htm.
[166] Same as above.
[167] Same as above.
[168] Same as above. The information meetings pilot schemes were launched in June 1997. Six models of information meeting were piloted. The programme was completed in June 1999, when the Lord Chancellor confirmed that preliminary results of the English pilot schemes were disappointing. The Final Evaluation Report was presented to the Lord Chancellor by the Newcastle Centre for Family Studies in September 2000: see Newcastle Centre for Family Studies (Research Director: Prof Janet Walker), Information Meetings and Associated Provisions within the Family Law Act 1996 (2001).
[169] Lord Chancellor's Department Press Release (Jan 2001), above.
[170] Same as above. Lord Irvine went on to state that: "The Government has taken forward a wide range of measures over the past three years to help families, including establishing the new Children's Fund and the Children and Family Courts Advisory and Support Service, improving maternity and parental leave arrangements, and increasing funding for marriage and relationship support to a total of 5 million pounds per annum by 2002-2003." It was footnoted in the press release that the decision regarding Part II did not affect section 22 of the 1996 Act, which relates to the funding of marriage support services and remains in force.
[171] See: Prof Gwynn Davis, Monitoring Publicly Funded Family Mediation: Report to the Legal Services Commission (2001). (See also the Summary Report to the report.)
[172] Same as above, at para 2.1.
[173] Same as above, at para 8.1.
[174] Same as above, at para 11.1.
[175] Same as above, at para 16.1.
[176] Same as above, at para 7.1.
[177] Same as above, at para 17.1.
[178] Same as above, at para 17.3.
[179] Same as above, at para 17.2.
[180] Same as above, at para 15.4.
[181] Same as above, at para 18.1.
[182] Same as above, at para 18.5.
[183] Same as above, at para 18.6.
[184] Same as above.
[185] Same as above, at para 18.10.
[186] Same as above, at para 18.12. The researchers found that the unevenness of expertise was most noticeable in relation to property and financial issues, based on evidence on the not-for-profit sector: same as above.
[187] Same as above, at para 18.11.
[188] The study found that, according to mediation providers, mediation in respect of children issues resulted in 'agreement' in some 50% of cases, whilst in financial disputes the agreement rate was of the order of 34%. They also found that, of those who reported that they had reached a measure of agreement at mediation, 59% said that they thought they would be able to modify this as necessary in the future: same as above, at paras 19.1 and 19.4.
[189] Same as above, at para 19.3.
[190] Same as above, at para 22.1.
[191] Same as above, at para 22.2.
[192] Same as above, at para 23.8.
[193] Same as above, at para 23.7.
[194] Same as above, at para 23.9.
[195] Same as above, at para 23.8.
[196] Same as above, at para 24.4.
[197] Same as above, at para 24.3.
[198] Same as above, at para 20.1.
[199] Same as above, at para 21.1.
[200] Same as above, at para 29.1.
[201] Same as above, at para 30.2.
[202] Same as above, at para 30.5.
[203] Same as above, at para 31.1.
[204] Same as above, at para 31.2.
[205] Same as above, at para 31.3.
[206] Same as above, at para 31.4.
[207] Same as above, at para 31.5.
[208] Same as above, at para 31.5.
[209] Same as above, at para 31.6.