Provision and Availability of Mediation

Clause 24 – in the House of Commons at 10:15 pm on 17th June 1996.

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Photo of Mrs Barbara Roche Mrs Barbara Roche , Hornsey and Wood Green 10:15 pm, 17th June 1996

I beg to move amendment No. 110, in page 15, line 39, leave out from beginning to 'the' in line 43 and insert— '(6) Any contract entered into by the Board for the provision of mediation under this Part must require the mediator to comply with a code of practice.(6A) The code must require.'.

Photo of Miss Janet Fookes Miss Janet Fookes , Plymouth Drake

With this, it will be convenient to discuss the following amendments: No. 111, in page 16, line 1, at end insert— `() that parties participate in mediation only if willing and not influenced by fear of violence or other harm;() that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;'. No. 112, in page 16, line 4, leave out from beginning to 'and' in line 6.

Government amendment No. 54.

No. 4, in clause 26, page 18, line 14, after `prescribed.', insert— '(3G) Notwithstanding subsection (3F) above, for the purposes of determining whether to grant representation for the purpose of any proceedings, taking proceedings is to be considered, to the extent that the proceedings relate to family matters, as more appropriate than recourse to mediation where harm or ill-treatment is an issue between the parties except where—

  1. (a) a mediator has certified that each party has separately stated a wish to have recourse to mediation; and
  2. (b) the mediator has certified that he has taken all reasonable steps to satisfy himself that each such statement has been made voluntarily.'.

Photo of Mrs Barbara Roche Mrs Barbara Roche , Hornsey and Wood Green

Members of the Standing Committee will remember that we spent much time discussing mediation. Those discussions were helpful because several hon. Members had considerable experience of mediation schemes, either from a national perspective or from their role as constituency Members. Mediation is an important part of the Bill.

The Opposition were concerned about the suitability of mediation in cases of domestic violence. The amendments seek to ensure that mediation does not take place where violence to the parties or their children is involved, and that it is voluntary. They would ensure that the parties are informed at information meetings that mediation is not suitable in such cases so that the picture is clear from the start.

In Committee, it was felt that we did not want a two-tier system where some people would be able to get legal advice because they could afford it or were eligible for it, while people who did not fall in into either of those categories might feel that the only thing that they could use was mediation, which might not be suitable in all circumstances. The amendments would ensure that mediators screen all potential clients to establish whether violence is an issue between the parties, that that is kept under review throughout mediation and that mediation is safely terminated if it becomes apparent that violence is an issue.

The issue concerns those who are involved professionally with mediation. Research by mediation agencies shows that it is both unsafe and inappropriate in most cases in which there is a history of abuse. Sadly, as has been said, in far too many marriages there are incidents of abuse, in most cases—not exclusively, but in most cases—involving abuse of the wife. A background of violence and threats can significantly affect the victim's ability to contribute effectively or to negotiate a fair settlement. Experience with the Children Act 1989 shows that many women feel pressured into agreeing to joint meetings, or even mediation, with their abusers because they fear losing their children if they do not. Research shows that that has happened in numerous cases, even though joint meetings are not compulsory.

It must be made clear to the parties in divorce that mediation is unlikely to be the best method of resolving arrangements fairly and safely when there is violence. It must also be made clear to mediators that they have a duty to investigate the possibility of harm to, or ill-treatment of, a party to ensure that parties are not inappropriately referred to mediation and denied access to legal aid or representation.

Some women escaping violence may choose third-party mediation, but the amendments seek to ensure that there is a clear choice and that people know what the situation is. As the Minister knows, that was extensively canvassed in Committee. It is one of the most important issues dealt with by the Bill. The Opposition believe that the amendments are crucial to ensure that there is a level playing field for the victims of violence, both women and children. I look forward to the Minister's reply.

Photo of Gary Streeter Gary Streeter Parliamentary Secretary (Lord Chancellor's Department), Assistant Whip (Law Officers) 10:45 pm, 17th June 1996

When I rise to speak and my wife is present, she always says to me, "Keep it short," but that is as nothing compared with what the Whips have been saying to me over the past few minutes.

Amendments Nos. 110, 111 and 112 amend clause 24 and provide a number of important safeguards and a strengthening of the provisions in relation to the provision of publicly funded mediation. In particular, they stress the voluntary nature of mediation—that where parties are influenced by fear of violence or harm, the mediator should be in a position to identify this at an early stage and mediation should not continue.

These are in addition to the requirements that mediators must have arrangements in place to ensure that the possibility of reconciliation is kept alive throughout mediation and to keep the parties informed about the availability of independent legal advice. They provide that the Legal Aid Board's contracts with mediators will require mediators to be working under, and complying with, a code of practice setting out the requirements that I have described.

Additionally, the code will require arrangements to be in place that are designed to encourage the parties to consider the welfare, wishes and feelings of each child and to what extent each child should be allowed to express their wishes in the mediation. I understand that the major mediation organisations already have in place such codes of practice, and it must be right to ensure that standards of excellence are maintained. The amendments are important and worth while and the Government are pleased to support them.

Amendment No. 54, which is a Government amendment, and amendment No. 4, are both concerned with clause 26, the presumption in favour of mediation. I ask the House to support the Government's amendment, which addresses the same issues as amendment No. 4, but provides a neater solution. Amendment No. 54 provides for the removal of the presumption in favour of mediation, which had aroused concern among many hon. Members in all parts of the House. However, amendment No. 4 retains the presumption in favour of mediation. It was made clear by hon. Members in all parts of the Committee that this was not desirable. Furthermore, it adds a new presumption in favour of representation in cases where harm or ill-treatment are an issue. This sets up a potentially confusing conflict for the board, the mediator and the client when suitability for mediation is being considered.

The requirement to attend the meeting will not apply if there are proceedings under part IV of the legislation—that is to say, applications for remedies in cases of molestation and violence, section 37 of the Matrimonial Causes Act 1973 emergency applications for freezing of assets where there are assets about to be removed from the jurisdiction, and public law Children Act 1989 cases.

The amendments will provide the necessary protection for vulnerable parties and those for whom mediation is not suitable while safeguarding public funds from the expense of unnecessary litigation. They demonstrate the Government's commitment to the development of mediation in family matters and I commend them to the House.

Government amendment No. 54 deals with the concerns raised in Committee and provides that there will be no presumption in favour of either mediation or representation. This seems to be a more effective and simpler way of achieving the even-handed approach for which amendment No. 4 appears to strive. We therefore reject amendment No. 4 and support the other amendments.

Photo of Mrs Barbara Roche Mrs Barbara Roche , Hornsey and Wood Green

I welcome the Minister's remarks and his support for our amendments, apart from amendment No. 4. We shall not press amendment No. 4, but will support Government amendment No. 54.

Amendment agreed to.

Amendments made: No. 111, in page 16, line 1, at end insert—

.() that parties participate in mediation only if willing and not influenced by fear of violence or other harm;
() that cases where either party may be influenced by fear of violence or other harm are identified as soon as possible;'.

No. 112, in page 16, line 4, leave out from beginning to 'and' in line 6.

No. 106, in page 16, line 8, leave out `and' and insert—

'(6B) Where there are one or more children of the family, the code must also require the mediator to have arrangements designed to ensure that the parties are encouraged to consider:

  1. (a) the welfare, wishes and feelings of each child; and
  2. (b) whether and to what extent each child should be given the opportunity to express his or her wishes and feelings in the mediation.

(6C) A contract entered into by the Board for the provision of mediation under this Part must also include.'.—[Mr. Streeter.]