Family justice system: Evaluation of Family Dispute Resolution service and mandatory self-representation

In March 2014 changes were made to how the family justice system (FJS) works. The Family Dispute Resolution (FDR) service is one of the major features of these changes. This service supports separating parents to reach mediated parenting agreements out-of-court. The FDR service consists of:

  • An assessment of whether a case is appropriate for mediation
  • A service that prepares people for mediation
  • A mediation process in which the mediator typically meets with each parent individually and then, at a later time, meets with both parents in a joint mediation session.

Another major feature is mandatory self-representation in the early stages of some Family Court proceedings. This means that people who take their mediated parenting agreement to the Family Court for formal recognition, or who would like a judge to help them reach agreement or make a decision for them, are not able to use a lawyer to:

  • File their documents with the Family Court
  • Meet with the judge (if required) in the early stages of the court process.

The Family Legal Advice Service (FLAS) is available to help low income people understand the new FJS and assist them to fill in court forms if they decide to go to the Family Court.

This report presents findings from an evaluation of the FDR service and mandatory self-representation one year after their implementation and includes information on improvements suggested by evaluation participants.

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Commissioning agencies
Date of last publication
Oct 2015

Methodology

From March to July 2015, semi-structured interviews were conducted with 67 parents who had been to at least one session of FDR mediation (referred to in the report as FDR parents). Interviews were also undertaken with 28 FDR mediators and providers of preparation for mediation (FDR professionals), 10 FLAS lawyers and 11 representatives of FDR accreditation or supplier organisations (organisation representatives). This means that the qualitative data about FDR does not provide information on the experiences of those parents who either did not have any involvement with FDR or who did have some contact but did not attend a mediation session. The sampling method and sample size mean that the evaluation findings cannot be generalised across all parties and practitioners in the FJS.

In addition, interviews were held with 16 parents who had been required to represent themselves in the Family Court (self-represented parents), five Family Court Judges and nine Family Court staff members (legal/court professionals).

Key Results

Key findings: FDR service

Interviewed FDR parents and FDR professionals generally supported the concept of resolving parenting disputes through out-of-court mediation. Parents often anticipated that court proceedings would be daunting, lengthy and costly.

A few parents and FDR professionals mentioned the ministry’s family justice website and thought that information on FDR was reasonably easy to locate and understand.

Overall, parents who had attended mediation were able to move through the out-of-court FJS fairly easily.

Parents were generally satisfied with the assessment of their case’s appropriateness for mediation, preparation for mediation, and the initial legal advice they received on the new FJS.

Parents’ perception of the FDR service was influenced mainly by their experience of the joint mediation session. Regardless of the outcome of the mediation, parents perceived the joint session (and by association the FDR service) positively when:

  • The joint session was run in the way they expected
  • The mediator was able to create a safe environment in which the parents felt heard
  • Parents did not feel pressured to reach agreement
  • The mediated agreement (where applicable) was presented to them professionally by the mediator.

A reasonable proportion of parents mentioned feeling pressured to reach a parenting agreement at mediation. Agreements reached in what parents perceived as a pressured process tended to be broken shortly after the mediation was completed.

FDR organisation representatives, FDR professionals, FLAS lawyers and parents believed that the inclusion of a child’s wishes, as expressed by the child, in FDR mediation is an area that needs further consideration. The evaluation findings suggest that children are not involved in the mediation unless the parents request this. Interviewed parents whose children were involved in the mediation, at the parents’ request, spoke positively about their children’s involvement.

Several FLAS lawyers mentioned a potential issue with semi-urgent cases which did not meet the threshold for a without notice application to the court. One FDR organisation representative suggested creating a fast track in the FDR service for fairly urgent matters.

Several FDR organisation representatives and many FDR professionals said they had received fewer referrals than they expected. They offered a range of explanations for this and suggested ways of improving parents’ awareness of, and access to, the FDR service in order to increase the volume of referrals. Some mediators and FLAS lawyers also said the flow of referrals was erratic. They believed the flow of referrals was erratic partly because of administrative delays in the suppliers’ referral process. Further investigation of the flow of cases into and through the family justice system is part of the Ministry of Justice Research and Evaluation Team’s 2015/16 work programme

The level of payment for some FDR services was another issue identified by the evaluation. Some mediators commented that the payment for FDR mediation does not compensate mediators for the time they spend on this service. Mediators noted that, in addition to funded hours, they spend time on administration and extended mediation sessions.

In addition, several FLAS lawyers considered that the payment lawyers receive for assisting parents to fill in Family Court forms does not compensate them adequately for the service they provide.

Key findings: Mandatory self-representation

Interviewed parents found the concept of self-representation appealing as they thought that excluding lawyers would simplify things and reduce costs. A few parents did find representing themselves straight forward but most found it difficult to represent themselves in the Family Court. They struggled to find information on the ministry’s family justice website about how to make an application to the court and state their case well in the on notice court forms2. Parents suggested that the ministry make it easier to find the relevant information on the website and they also wanted examples of what they called ‘high quality’ answers to the questions in the application forms so that they could fill in the forms well.

Some parents were unclear about the process for serving court papers.

Parents felt anxious about representing themselves in court because it was an unfamiliar environment, and they knew the judge’s decision would affect their contact with their children. The evaluation findings suggest that parents felt reassured when:

  • They received legal advice, especially about how to complete the court forms and represent their case well in court
  • They were assisted by friendly court staff
  • Their court documents were processed correctly
  • They believed the judge made allowances for the parents’ lack of legal expertise.

Some parents mentioned feeling disadvantaged in court because they believed that they were unable to express themselves well, and/or that their ex-partner had been able to access more legal advice than they had.

Most legal/court professionals believed that requiring parents to represent themselves expected too much of them. They acknowledged that the ministry had produced guidelines on self-representation but felt that parents were too focused on contact with their children to read this information.

It was thought that Family Court staff spent more time answering parents’ questions since the new FJS was implemented.

Court events involving self-represented parents were perceived by several judges and court staff as taking longer than those where lawyers represent parents, mainly because parents lack the knowledge and experience to present their case succinctly. Legal/court professionals expressed concern that power imbalances could be played out in court due to differences in litigants’ ability to self-represent. Almost all of the legal/court professionals suggested that parents be allowed to use a lawyer to file their papers and represent them in all stages of Family Court proceedings. They believed that lawyers would even out any power imbalances between parents and keep cases moving through the court.

 

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