Mapping Paths to Family Justice Resolving Family Disputes in Neoliberal Times
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Mapping Paths to Family Justice Palgrave Socio-Legal Studies Series Editor David Cowan, Professor of Law and Policy, University of Bristol, UK Editorial Board Dame Hazel Genn, Professor of Socio-Legal Studies, University College London, UK Fiona Haines, Associate Professor, School of Social and Political Science, University of Melbourne, Australia Herbert Kritzer, Professor of Law and Public Policy, University of Minnesota, USA Linda Mulcahy, Professor of Law, London School of Economics and Political Science, UK Carl Stychin, Dean and Professor, The City Law School, City University London, UK Mariana Valverde, Professor of Criminology, University of Toronto, Canada Sally Wheeler, Professor of Law, Queen’s University Belfast, UK Mapping Paths to Family Justice Resolving Family Disputes in Neoliberal Times Anne Barlow University of Exeter Law School, UK Rosemary Hunter Queen Mary University of London School of Law, UK Janet Smithson University of Exeter School of Psychology, UK Jan Ewing University of Exeter Law School, UK © Anne Barlow, Rosemary Hunter, Janet Smithson and Jan Ewing 2017 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author(s) have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2017 by PALGRAVE Palgrave in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of 4 Crinan Street, London, N1 9XW. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–1–137–55404–8 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. Contents List of Figures ix List of Tables x Authors’ Note xi Acknowledgements xii List of Abbreviations xiv 1 Introduction 1 Key concepts 2 Neoliberalism 2 Family dispute resolution 3 (Family) justice 6 The neoliberal transformation of the family justice system 10 Chapter outline 17 2 The Three FDRs 20 Family solicitors 20 Qualifications, training, regulation and professional bodies 21 Research and policy on family solicitors 22 Mediation 26 Styles of mediation 26 The mediation process 28 Qualifications, training, regulation and professional bodies 29 Family mediation in practice 34 Research on family mediation 34 Collaborative law 46 Qualifications, training, regulation and professional bodies 46 The collaborative process 47 Collaborative law in practice 49 Research on collaborative law 50 Conclusion 51 3 The Research Project 53 Introduction 53 Aims of the study 54 Creating an evidence base 54 v vi Contents Exploring normative issues 55 Research questions 57 Subsequent policy developments 58 Research design and methods 59 Phase 1 – the quantitative national survey 60 Phase 2 – qualitative party and practitioner interviews 61 Phase 3 – recorded sessions 64 Analysis and synthesis 65 4 Awareness of FDRs: The Policy Challenge 67 Research findings on awareness 69 Survey findings 70 Interview findings 74 The trials and tribulations of family mediation after LASPO 78 Conclusion 82 5 Entering Family Dispute Resolution 84 Introduction 84 Choosing an FDR process 85 Exercising autonomy – positive choice 86 Limited autonomy – constrained choice 88 Mitigating constraint – the importance of informed choice 94 Screening for domestic violence 96 The screening process 98 Responding to disclosures of violence 101 Party perspectives on MIAMs and mediation after experiencing domestic violence 104 Conclusion 107 6 Experiences of FDRs 111 Introduction 111 The experience of solicitor negotiation 112 What parties liked about the solicitor negotiation process 113 What parties did not like about the solicitor negotiation process 114 Emotion and conflict in the solicitor negotiation process 115 Experiences of solicitor negotiation in domestic abuse cases 117 Gendered experiences of the solicitor negotiation process 118 The role of the practitioner in solicitor negotiation 119 Focus on children’s welfare in solicitor negotiation 120 Experience of the process of mediation 122 What parties liked about the mediation process 122 What parties did not like about the mediation process 124 Contents vii Gendered experiences of mediation 126 Emotions and conflict in the mediation process 126 Experiences of co-mediation 129 Experiences of shuttle mediation 131 The role of the practitioner in mediation 132 Focus on children’s welfare in the mediation process 135 Experiences of the process of collaborative law 138 What parties liked about the collaborative law process 138 What parties did not like about the collaborate law process 140 Experiences of the disqualification clause 141 Gendered experiences of the collaborative law process 142 Emotions and conflict in collaborative law 143 Experiences of collaborative law in domestic abuse cases 144 The role of the practitioner in the collaborative law process 145 The collaborative process and children’s welfare 146 Participants’ comparisons of FDR processes 147 Conclusions 149 7 Outcomes of FDRs 153 Introduction 153 Resolution rates 154 Satisfaction with outcomes 156 Partial outcomes 157 The non-binding nature of mediated agreements 158 Reasons for settlement 159 Mediation 160 Solicitor negotiations 161 Collaborative law 162 Gendered reasons for settlement 162 Longer-term outcomes – improving communication and reducing conflict 165 Improving communication 165 Reducing conflict 167 Cases that were not resolved by FDRs 168 Conclusion 171 8 ‘Just’ Settlements? 174 Introduction 174 Parties’ norms 175 Practitioners’ norms 180 Child welfare norms 181 The shadow of the law 184 viii Contents The encounter between party and practitioner norms 195 The norms embodied in outcomes 195 The relationship between norms and resolution 198 Just settlement? 200 Conclusion 202 9 Conclusion 205 Appendix 1: Summary of Project Information Available on UK Data Service 212 Appendix 2: Summary of TNS-BMRB Omnibus Survey Methodology 214 References 217 Index 229 List of Figures 3.1 Practitioner sample 63 4.1 Awareness of ADRs in the general (Omnibus) population 70 4.2 Publicly funded MIAMs, mediation starts and full agreements reached 80 ix List of Tables 4.1 For those in the separated/divorced sub-sample who had heard of each ADR: Where did you first hear of...? 73 7.1 Percentage of cases using a FDR process that settled in that process 155 8.1 Typical norm disparities and outcomes 199 x Authors’ Note This book is a product of the ESRC-funded study ‘Mapping Paths to Family Justice’ (2011–2014). Anne Barlow (University of Exeter) was the Principal Investigator on the project, with Rosemary Hunter (then Univer- sity of Kent, now Queen Mary University of London) and Janet Smithson (University of Exeter) as Co-Investigators. Jan Ewing was employed on the project as a Research Associate at the University of Kent and later also at the University of Exeter. Their respective contributions to the writing of the book were: Rosemary Hunter – 50 per cent, Anne Barlow – 30 per cent, Jan Ewing – 10 per cent, and Janet Smithson – 10 per cent. A follow-on project, ‘Creating Paths to Family Justice’, funded by an ESRC impact accelerator award, is being conducted from the University of Exeter by Anne Barlow and Jan Ewing. xi Acknowledgements This book is the culmination of some five years’ work and could not have been written without the generous help and support of a number of people and organisations to whom we would like to express our enormous grati- tude here. First, the role of the Mapping Paths to Justice Advisory Group was critical to the success of the project, particularly in the shifting family policy landscape in which the project found itself. The members of the Advisory Group each gave freely of their time and experience and their commitment to the project went far beyond what we could have hoped to have gained from them. The members were: James Carroll (Solicitor and Law Society Family Law Sub-Committee); Lester Coleman and Mariya Stoy- lova (Researchers, One Plus One); Sarah Lloyd (Former ADR Co-ordinator, Resolution and now Family Mediation Council); Mavis Maclean (Oxford Centre for Family Law and Policy and Ministry of Justice Research Con- sultant); Ashish Patel (Senior Researcher, Ministry of Justice, formerly Legal Services Research Centre); Janet Reibstein (Psychologist and Relationship Specialist, University of Exeter); Jane Robey (CEO, National Family Media- tion); Beverley Sayers (FMA Mediator, Resolution Member and Former Chair, Family Justice Council’s ADR Committee). Their role in advising us on sample recruitment for the second and third phases of the project, on designing our questionnaires and interview schedules and providing sup- port, challenge and encouragement through our regular meetings over three years was invaluable. Their assistance with disseminating our find- ings to various policy and practitioner audiences as well as their attendance at our final conference also provided us with important feedback on how our findings might play a role in shaping the post-LASPO world of family justice in our follow-on project, Creating Paths to Family Justice. The project would also not have been possible without the dedication of our team of Research Associates. In addition to Jan Ewing, Kate Getliffe was with us at the outset of the project until illness prevented her from taking any further part.