Mediation is quicker and better than going to Court for child cases

The Court and Mediation Timetables for children cases Compared

How long does the Court take to decide cases about children?

We regularly deal with mediation cases where contact and communications have broken down. Parents can be skeptical about whether mediation might work and worry that it might be a waste of time. Typical thoughts can be;

“How long does mediation take?”

“If I mediate, will I be wasting months of time? surely its quicker just to go to Court “

“If I go to mediation, the my former partner will just string things along and I will get nowhere” 

“We cannot talk about things at all, I don’t believe mediation will work”

“I cannot trust my former partner to try and find an agreement or to stick to it”

 But Mediation can and does work, and it can provide better and more durable solutions than going to Court. The solutions can be achieved much quicker than a full Court process.

Cases about Children

We have prepared a table to help you compare the approximate Court timetable and a timetable for family mediation.

Points to note about the timelines

• These are approximate, but based on years of experience both as a family mediator and a child law specialist solicitor

• Unless an urgent hearing is needed (and this means urgent because there is evidence of a risk of harm which requires urgent consideration by the Court), then an applicant for a Children Act Section 8 Order (Residence, Contact, Prohibited Steps, Specific Issue Orders) needs to meet a Mediator for a MIAMs meeting. This is a Mediation Information and Assessment Meeting. The Mediator will consider the suitability of mediation, which often includes meeting both parents. The Mediator will explore questions of risk with both. The MIAM process can take several weeks.

• If Mediation is not suitable, the Mediator will issue form FM1, which needs to be sent to the Court with the Application for a Section 8 Order. Of course the Solicitor still needs to prepare the application and their client needs to sign it, before the papers can go into the Court. It can easily be 6 – 8 weeks from first stepping foot into a Solicitors office until the papers go off to the Court, sometimes longer, although in other cases, maybe a couple of weeks.

• If Mediation is suitable, a first mediation meeting can be arranged within a week, subject to everyone’s availability.  (I have certainly managed initial enquiry to session 1 within 7 days, including separate mediation assessment meetings).

• The Mediator should want to meet each of the parents separately in every case before starting a process. This is my view is the only way you can do the safety checks properly (unless you are using the hybrid mediation model). The Mediator must satisfy themselves that both of the couple will be able to express themselves freely in mediation and that there are no safety issues, before during and after the mediation.

• When an application is received by the Court, CAFCASS are asked to carry out safeguarding checks. This means contacting the Police and Social Services. CAFCASS will speak to both parents and prepare a short report. I have optimistically allowed 3 weeks for this, but perhaps between 6 weeks would have been more realistic. It depends on local pressures on both CAFCASS and then on the Court to list the application for a first hearing.

• When you get to Court, If the Judge is satisfied that there are “welfare issues”, the Judge will ask CAFCASS to prepare a full welfare report. This can take 12 -14 weeks to prepare. I have known these reports to take even longer. Most of the work is carried out toward the end of the timeframe! The report is very important to the ultimate outcome, because it gives the Judge an independent view as to how the children’s needs should be met.

• There is a pressure on parents to exaggerate “parenting differences” and “adult disagreements” to the level of “welfare concern” in order to justify what they are asking for, or the position that they have taken, or their own past actions. When ordering the report to be prepared, the Judge has little time to explore the issues, and will tend to take accusations at face value.

• In other cases the Judge will decide that a CAFCASS Welfare Report is not needed and will ask both parents to file written statements setting out their evidence and then listing the case for a hearing to decide the outcome. This is of course quicker, but you can still easily be looking at 8 weeks from first hearing to final hearing (week 14 or so).

• Sometimes welfare reports are prepared by Social Services (if they have been in involved with the family); these reports can take just as long to be prepared.

• Statements; both need to put in writing why they have taken the position they have taken. In other words, why they are in the right and the other is in the wrong, or why they are good and the other is bad or why they tell the truth and the other is a liar. As a Solicitor, these can be difficult to word; you need to get across the strengths and positives in your clients case, even when presenting a positive case, it is difficult to avoid being critical of the other.

• How are statements read? Do you like reading things written by someone who you find (at least) irritating which criticises you? Of course not, statements can be very damaging and divisive.

• If a welfare report has been prepared, there will generally be a directions hearing ( a short hearing) where the Judge will hope that the parents will have read the report and will have sensible negotiations and reach agreements based on its recommendations. If no agreement is possible, the Judge will list the case for a hearing in order to hear evidence and to make decisions. The more evidence that needs to be considered, the more time that will be needed, and the further away that the hearing will be. I have put down week 26, but in some cases you could easily get to week 30 or more.

• This brings us back to mediation. Session 1 will be tense. The parents may not have been able to have a sensible discussion for months if not years. Do not expect everything to be resolved. Mediation is a process. Session 1 is a start. It is about getting talking again. Session 1 is about finding enough of a joint objective to make it worth coming back again. I say to my mediation clients that mediation is a voluntary process, and that this voluntariness is 3 way. In other words, they both have to want to mediate, and I have to think that mediation is able to work as well. Even when contact has broken down completely, it should be possible to find a joint objective; this can be as simple as; the children seeing the parent who they do not live regularly; the children being available for the start when they are supposed to, and being collected and returned reliably AND having enjoyed themselves; and the parent with care having confidence that nothing unsafe will have happened with the other parent. The objective often includes overnight stays, holidays and flexibility. It can be difficult for a parent who is not seeing their children or has limited time with them to conceptualise that the other parent want the relationships and arrangements  to succeed, but in my experience, there is this long term common ground in most cases. If there is not, there is unlikely to be a viable mediation process. If there is the long term goal, the mediation will succeed if both want it to.

• If mediation is viable, then it is about taking short, but increasing steps toward the goal. At appropriate points, gains need to be consolidated. It succeeds by both delivering upon what they say they are going to do. It succeeds by both focusing on keeping substantive discussions to mediation meetings, and to avoiding bad communications in between (the dreaded text message :C  ). It also succeeds because both have confidence in the mediator, and that they are neutral. The importance of the space that the mediator provides for discussion cannot be downplayed either; both parents come to meetings, to a neutral venue, prepared to talk and prepared to listen and prepared to negotiate.

• But I have seen mediation fail because one or both want too much from the other too soon. Patience is a key to success, because the process is about rebuilding trust.

• I have allowed for 4 mediation sessions in the timetable, but sometimes 3 is enough.

• A big difference between mediation and Court is that real progress can be made almost immediately. If contact arrangements have broken down, then depending on the allegations each are making against the other, contact may not be resumed until the end of the case; week 26 or so; half a year! This is a long time in anyone’s life, but particularly for a small child. With mediation, some contact can often take place between mediation session 1 and mediation session 2, but if not, then some trust building work can be done, laying the foundations for a resumption after session 2.

• And this is the real difference, by the time you get to Mediation Session 3 or Mediation Session 4, substantial progress could/should have been made.

• Other differences between mediation are the cost and quality of the outcome. After a successful mediation, the parents are talking and getting on again. After a “successful” Court process, there is an outcome; A Judge has made a decision, but the parents will have increased resentment of each other, and are further away from the flexibility and reasonableness they probably wanted in the first place.

• Finally, if you look at the timetables, you will see that to have one mediation session, will make little difference to the overall Court timetable. Indeed if you have 2 Mediation Meetings, the time delay to Court will be fairly small, as the big delays are later on.

• Of course you can adjourn Court Proceedings for mediation at any point. I have successfully mediated cases after the Welfare Report has been received, but before a Final Hearing is fixed.

• Process or Outcome? Outcome is what matters.