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Back to the Future, Mediation then and now

Cherie Blair, Family Mediators Association Gala Dinner, 25 June 2013

As a Vice President of the Family Mediators Association, I am delighted to speak this Gala Dinner to mark its 25 years of promoting the positive force that is mediation in family law. Bearing in mind you are in the midst of this delicious meal I have been asked to speak briefly about “Back to the Future, Mediation Then and Now”.

Let me first of all reassure you that as someone who practised for many years as a junior barrister at the Family Bar and a qualified mediator I do know what mediation is and what it can achieve. I say this with some humility as I remember when I was still living at No 10 Downing Street, and first started my training at a mediator I wondered why the police protection officers who accompanied me there seemed so confused about why I was going on the course. It was only when we got to the venue and I saw a look of relief on their faces that they revealed to me that in their diary it said I was going on a meditation course!

Back in 1976 when I was called to the Bar there was a lucky coincidence of two major trends in the law, lucky for a beginner at least. Firstly, the then Labour Government passed the Domestic Violence and Matrimonial proceedings Act which for the first time gave dedicated civil remedies to victims of domestic violence. Secondly, it was a time when legal aid and, in particular, civil legal aid in family matters was expanding. And so it was the one Cherie Booth newly qualified barrister would turn up at Bow County Court, or in Old Street Magistrates Court or in Oxford or in Brighton to represent mainly female victims of violence. I still remember my first ever trip to Norwich as a very junior barrister walking into the robing room at court and the whole place fell silent as they realised to their horror that no I was not a secretary in there by mistake but an actual female barrister. And so it was that I cut my teeth on the all too familiar cycle of an ex parte injunction followed by an inter partes hearing followed by reconciliation followed by further violence. I even had one of my client who was killed by her violent partner and faced myself both inside and outside of court much verbal and even some physical abuse from angry partners evicted from the former matrimonial home.

Of course one of the reasons I was given these cases was the culture of the time where these cases were not regarded with the seriousness with which we take them today and therefore were regarded as suitable cases for beginners.

And it was not only in relation to violence against women that things were changing, slowly the idea of the independent woman was starting to become a feature in property cases often to the disadvantage of middle age women who had left the workforce because their husbands wanted their wives at home only to be faced decades later when he had run off with a younger model with the claim that in the 1980’s women could be expected to support themselves by working outside the home. I fear some husbands particularly liked to use women counsel to make those arguments and as a strong upholder of the cab rank rule I would make them.

Or take attitudes to children, physical abuse was already acknowledged and soon I found myself doing wardship cases about sexual abuse of children which became very much to the forefront after the Cleveland Enquiry conducted by a judge then relatively unknown to the public, Elizabeth Butler Sloss. And as Lord Wilson himself pointed out in 2007 in his lecture in honour of the late David Hershman and Allan Levy, in the 1970’s when he was representing the Official Solicitor in children’s disputes his brief was to do what he thought best for the child. Today, we have come a long way and the emphasis is now on ensuring the child’s voice is heard. Much of that of course is due to Lord Wilson himself as an advocate and as a judge.

But even back in those early days there was always a glimmer of recognition that warring families fighting it out in the courtroom was neither healthy for the families or for the public purse and that is why 25 years ago the FMA was formed and also why over the last 25 years an increasing emphasis has been placed in the family courts on mediation, conciliation or some other non-court based method of dispute resolution.

Litigation is of course the ‘last resort’. Very few relationships, commercial or personal, survive intact once the courts get involved. This is the case particularly in family law and I always remember what the late Lionel Swift QC who gave me my red bag after a long and harrowing wardship case in which he lead me telling me that the best family lawyers of course understand the law but their real skill is in having empathy for their clients and the situations in which they find themselves and so use the law in creative ways to help minimise the collateral damage.

And of course this is where mediation comes in. As Lord Wilson himself has said
"Mediation is an extremely important and valuable means of resolving disputes. At the outset of a case and while it develops, every family lawyer should discuss with the client whether it may be suitable for mediation.”

This is because dealing with family disputes is about more than someone’s formal or legal rights. Mediation provides an informal, confidential and flexible solution based forum - one not restricted by the logic of polarised conflict and where far greater control and responsibility is placed on the shoulders of those whose disputes are actually being addressed.

Solutions to a dispute do not have to be about legal rights and remedies.
Asserting or defending a client’s strongest case may not produce the best solution for those involved.

Creative solutions which are forward looking can be reached.

We have to recognise, however, that some intransigent parties require an intermediary to have the wisdom of Solomon and the patience of Job to get them to this solution. And that is why it is the States duty as part of its fundamental obligations to its citizens to provide them with impartial courts where in the last resort decisions will be taken.

Mediation does not provide a legally enforceable outcome, it relies upon the good faith of the parties involved.

The tension between the need to settle and the unenforceability of the settlement has to be balanced but the hope is that you have an outcome which is the best possible one for all involved and not just about compromise.

The truth is that there is no single, fail-safe solution. The best and most appropriate method for settling a dispute depends on the nature of the disagreement and what is at stake.

There are an increasing number of effective approaches. We have to play our part in educating the public but also the legal profession about the choices available, their advantages and appropriateness and this is where this Association has played such an important role.

And that role is even more important today when we literally do appear to be going back to the future and have come full circle to an era when family law was only open to the fortunate few or the litigant in person.

We are entering a new world in the family courts when there will be far fewer advocates, young or otherwise representing families, when the judges will have to shoulder a far greater burden in ensuring that justice is done between mainly unrepresented parties whose relationships have broken down. I don’t need to remind this audience how devastating the cuts in legal aid are but I should point out that this is going to have a great effect on mediation too.

The growth of mediation over the past 16 years owes a lot to the availability of legal aid for mediation. Since 1997, solicitors have been required to refer clients to mediation so that they can apply for legal aid for them. But since 1st April this year, legal aid for solicitors in family law cases was removed apart from in domestic violence cases. Many, including the government think this will increase the use of mediation. Indeed the Ministry of Justice has announced it is committed to spending £25 million in the next year to support publicly-funded mediation and is behind new laws being created to ensure all separating couples must consider mediation before they can take their dispute to court.

In reality, however, mediation services are facing a substantial drop in referrals as the filter provided by legal aid solicitors has been taken away and so there are fewer referrals to mediation. The FMA is aware of many legal aid mediation services that are planning redundancies. This is quite contrary to what the government say they want or expect for mediation. Surely an example of unintended consequences or a lack of joined up thinking from the Ministry.

So, as the Chinese Say we meet in interesting times.

To be blunt we have not always been the best advocates as a profession for what we do and why we are needed. For many years I was Chair of the Legal Aid lawyer of the Year Awards and the amazing stories of going beyond the call of duty that came before us were a huge tribute to the profession. But do we hear about that in the media? No, all we hear about is fat cat lawyers who exploit the public.

I believe as we are seeing increasing concerns being expressed about what I assume where the unintended consequences of these changes that we can still at least mitigate some of the worst effects. I do not doubt that as a profession we have the resolve and the tenacity to rise to this challenge and in so doing preserve the best of what has gone before us.

And no one more reflects all that is best in the legal profession than the two people that the Association would now like to honour.

Nicholas Wilson has been our President for the past 15 years. He has been an exceptional friend to FMA giving his support at FMA conferences and AGM’s, his time to support FMA chairs and his considerable assistance as we have faced various challenges throughout his Presidency. From his early days in practice in the 1960s through his stellar career through the ranks of the legal profession and now the judiciary, he is a living example of the rounded, creative and empathetic family lawyer we all want to be. Although he is now standing down as our President he will continue to shape not just Family law but justice overall in his role as a member of the Supreme Court. Lord Wilson please come and accept this small token of our appreciation.

Also tonight we are privileged to have with us Claire, the widow of John Cornwall. John dedicated much of his working life to the development and progress of family law setting up his own practice Dawson Cornwell and Co in 1972 and then the mediation organization Resolution in 1982. One of his first steps was to draft a Code of Practice that all members follow to this day. The vision and imagination that John showed in gathering family lawyers together and proposing a different way of working should not be underestimated. The positive impact of this for families since then is immeasurable.

In 1998 he co-founded this Association. John was also a Deputy District Judge of the Principal Registry of the Family Division of the High Court from 1986, and a member of the Law Society Family Law Committee from 1993 to 1999.

His was a great loss to the profession but of course most of all to his own family and Claire would you please come up so we can present you with a small mark of our appreciation of him, to you, who knew him best.

Family Mediators Association website