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By Anthony Wooding, civil and family associate ASM Plus mediator and law lecturer

Imagine the scene. Jack is going through the trauma of divorce. He has a preliminary meeting with a lawyer to get things straight in his mind. The lawyer tells him what a MIAM is, what criteria the court will use and evidence it will consider in deciding which parent the children will live with; how the assets will be divided; what income provisions are required.

After listening intently, Jack says: ‘What about the children’s drawings?’  The lawyer responds: ‘Do you mean they have their own accounts as well?’ Jack comes back: ‘No! I mean their artwork. There is one I really treasure which Peter did when he was 11. It’s of a horse. It was entered in an inter-school competition and got first prize. Joanne has it now, I would like to have that one. But we are not speaking now as you know.’

The lawyer looks at Jack with a blank expression, trying to conceal his incredulity. Then he replies: ‘The family court doesn’t interest itself with things like that. It concentrates on the big issues. Jack retorts: ‘Well, it’s not that I don’t care about all the ones you mentioned, they are going to be tough, but I care about that drawing too. Especially if I don’t get Peter to live with me, I need to keep his footprint there all the time in person.’

The lawyer speaks with good experience and authority. It was ever thus in large part in practice, depending in part on an individual judge’s perspective of ‘relevance’.  But recently we also have this clear statement by a senior Family Judge, His Honour Judge Wildblood QC, in a judgment within a case known as Re: B:

‘Therefore, the message in this judgment to parties and lawyers is this, as far as I am concerned. Do not bring your private law litigation to the Family court here unless it is genuinely necessary for you to do so. You should settle your differences (or those of your clients) away from court, except where that is not possible. If you do bring unnecessary cases to this court, you will be criticised, and sanctions may be imposed upon you. There are many other ways to settle disagreements, such as mediation’. (1)

Earlier in his judgment, the judge gives examples of what he is referring to. These relate particularly to contact and related issues with children being the cases which would particularly come under his purview as a family judge:

“To further explain the problem, I give these examples of similar requests for micro-management that have arisen before me in the past month: i) At which junction of the M4 should a child be handed over for contact? ii) Which parent should hold the children’s passports (in a case where there was no suggestion that either parent would detain the children outside the jurisdiction)? iii) How should contact be arranged to take place on a Sunday afternoon? Other judges have given me many other, similar examples” (2)

The judge specifically refers in his judgment to the pressure on the court’s resources as being a reason why he must come to his conclusion and, in effect, speak out.

So now the issues that are regarded by the court but not necessarily the parties, as ‘micro- management requests’ are by this argument so strictly off limits that parties will face sanctions for even raising them.

Two recent case authorities on mediation focus on appropriate costs sanctions being ordered on a party who expects the court to decide rather than exploring mediation first. Within those cases there is a thread that a belief in a defence to the claim, reasonable or otherwise, is no defence to mediation refusal and costs consequences will flow, especially if you lose. I refer the reader to the recently decided High Court cases of DSN v Blackpool Football Club and Ohpen Operations UK Limited (3) and the related blogs written by the ASM plus director, Paul Sandford (4).  Even some mediators tend to think in terms of there being a claim or a defence which a court could hear.

However, in most instances, there are good reasons to mediate, owing to costs, risks of losing and other factors.  This is underlined in one particular extract from the Blackpool case.

Mediators refer to BATNA and WATNAs, i.e., best and worst alternatives to negotiated agreements. One, if not main, BATNA would be winning in court and one WATNA losing. But what I am now referring to is something beyond this. The court won’t even look at the issue at all, for reasons of resource.  All the more so, that is an argument in these pandemic times.   Or if it does it will deal with in a perfunctory way, maybe at best begrudgingly. Say in my case of Jack and Joanna, ordering a drawing (excuse the second pun on this!) of a list of the children’s art and dividing down the middle for example. And even then, facing sharp judicial criticism for raising the issue and possibly costs penalties.

Note also that this might not just be an issue in a divorce case.  It could be in a contested probate or inheritance case where there is sentimental attachment to a deceased parent’s collections. If not dealt with in the main action, a claimant might still have salt rubbed in the wound by facing an ‘abuse of process’ or ‘vexatious claim’ strike out and costs if they tried to raise a separate claim. If owing to the ‘financial value’ criteria they had to bring as a County Court small claim, no costs could be awarded anyway even if successful.

Hearings are not for hearing everything.

There are myriad issues which matter to parties which might come into this category. Where you go for child contact on the M4 might sound trivial, or point scoring, but what if it’s by the service station restaurant which sells the beefburger which he loves but Joanne wants to avoid as she wants him to go veggie?

So, such issues, unless they can be agreed in correspondence, are left out. And even the former assumes that the lawyers will even raise them. They will certainly need to pick their moment!

But the good news is, as His Honour Judge Wildblood clearly states, that such issues can still be mediated.  This could be either separately or in the context of all the issues between the parties.

That’s not to say that smaller issues shouldn’t be capable sometimes of resolution between parties without any third-party intervention, whether by judge or mediator. But often it is in my experience as mediator that such issues can be sticking points for all manner of reasons. And the only alternative to resolving them is for one party to just give in. This seems the other inevitable implication of the ‘don’t trouble the court’ philosophy.

As I write this, I look up at two of my children’s art works we have framed in my study. Luckily for us, as long as I live, I believe I will be able to do that. Even if we move and sell most of our other, bigger more expensive stuff, to which I am less attached.

  1. (A Child) (Unnecessary Private Law Applications), Re [2020] EWFC B44 (25 September 2020) paragraph 9
    URL: http://www.bailii.org/ew/cases/EWFC/OJ/2020/B44.html
  2. Ibid paragraph 7
  3. Blackpool and Ohpen Case references
    • DSN and Blackpool Football Club Limited – Case reference [2020] EWHC 670 (QB) – most easily accessed on the Bailli website – https://bit.ly/3fH224l
    • Ohpen Operations UK Limited and Fund Managers Limited [2019] EWHC 2246 (TCC) Bailli (https://bit.ly/3leRqwp) and [2019] EWHC 2504 (TCC) https://bit.ly/3qCCkSI
  4. Blogs
    • Blackpool – Civil and insurance mediation, ASM Plus – the very important recent decision of the High Court of England and Wales, DSN v Blackpool Football Club given by Mr Justice Griffiths: https://bit.ly/3rFDePA
    • ·         Ohpen – Civil and insurance mediation from ASM Plus – an appraisal of the recent High Court decision of Ohpen Operations UK Limited -v- Invesco Fund – Managers Limited (1) and the importance attached therein to civil mediation: https://bit.ly/3rFDePA
  5. “The reasons given for refusing to engage in mediation were inadequate. They were, simply, and repeatedly, that the Defendant “continues to believe that it has a strong defence”. No defence, however strong, by itself justifies a failure to engage in any kind of alternative dispute resolution. Experience has shown that disputes may often be resolved in a way satisfactory to all parties, including parties who find themselves able to resolve claims against them which they consider not to be well founded. Settlement allows solutions which are potentially limitless in their ingenuity and flexibility, and they do not necessarily require any admission of liability, or even a payment of money.”

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