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Baroness Hamwee: I have four short drafting amendments in this group. The first two (Amendments Nos. 127A and 13OA) merely suggest that a reference to mediation services might be more appropriate than "mediation facilities". Amendment No. 143A is designed to question the use of the word "amicably" in Clause 13(1) (a) and to suggest that a power to adjourn:
That seems to suggest that only the purposes set out in Clause 13(1) can be taken into account, or are material to that determination, whereas Clause 13(1) includes two purposes, but is not complete in describing them. Amendment No. l43A therefore may be a little more than just a drafting amendment.
We are all increasingly conscious of the heavy burden which mediation will have to bear if the Bill is finally approved. At the moment, of course, mediation services are funded largely voluntarily. Since it has become clear that government policy supports mediation traditional funders are tending to withdraw their support, assuming that franchises are already available, whereas they are unlikely to come into operation until l999, and considering that the maintenance of local services should now be part of government responsibility.
Once the Act is implemented, of course, the core services are likely to be met, but until then some means must be found to ensure the financial viability of the local services until implementation. If the process is to work, mediation needs to be up and running. That, of course, needs financial support.
The principle is that participation in mediation must be voluntary and not compulsory. I am concerned to ensure that there are no indirect qualifications on the generality of that proposition that mediation must be voluntary.
The subject of Clause 12, as the noble and learned Lord explained, is that the parties are to be informed about mediation facilities; they are also to be given an opportunity to avail themselves of those facilities. However, let us suppose that a party declines because, if a woman, she is intimidated by her husband; she fears that she will be unable to give a good account of herself, unrepresented, in front of the mediation; and not be able, perhaps, to speak properly for the children. Let us suppose that she would prefer to be legally represented in court. The distinguished family lawyer, Ruth Deech, who is also the Principal of St. Anne's College, Oxford, has called attention to the dangers that mediation holds for women and many agree with her. The short point that I make is that it must be made absolutely plain that
I well understand that in the ordinary way a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. I am assuming a state of affairs in which there has been a prior refusal to participate in mediation, a position which a party is entitled to adopt because mediation is truly voluntary. If the court had any such power it would be enabled to seek to induce a party who has declined to participate in mediation to do so. I suggest that it should be made plain beyond doubt that no court may do that. I suggest that the amendment is necessary for that purpose. It would underscore the fact that no court pressure may be brought on individuals who have declined to participate in mediation to do so.
There are now a large number of potential mediators in the field who are of varying calibre, training and background. A recent major advance has been the inauguration of the United Kingdom College of Mediators, which should ensure the attainment and maintenance of high standards and professional accountability.
Amendment No. 142 would ensure that the practice of mediation conducted under the provisions of the Bill is of the highest order by placing on the face of the Bill the requirement that such mediation be conducted according to the code of practice of bodies approved for the purposes of mediation by the noble and learned Lord the Lord Chancellor. The amendment has the support of National Family Mediation, which supports the principle of a code of practice on the face of the Bill. If mediation is a vital part of the operation of the Bill, and it will be vital for the divorcing parties and their families, it seems desirable that there is a statutorily approved code of practice. As the noble Lord, Lord Irvine of Lairg, said earlier today, one must bear in mind that public funds are being directed towards such bodies.
Amendments Nos. 135, 144, 150 and 153 are directed to a separate matter. Amendment No. 135 is concerned with the nature of Clause 12(4) and in some ways the point has already been touched on by the noble Lord, Lord Irvine of Lairg. Under Clause 12 the court may give a direction requiring the parties to attend a meeting to enable them to receive an explanation of the facilities available for mediation. Under the procedures of the Bill, that may well be the third time that they have been confronted with an explanation of mediation. I question how much direct pressure there should be on the parties to mediate if mediation is meant to be a voluntary process.
Baroness Faithfull: The noble Lord, Lord Meston, has spoken to Amendment No. 142 concerning a code of practice generally speaking. Amendment No. 141 requests a code of practice specifically relating to children, and this amendment is put forward by all the children's organisations. I thought I should make this clear to the noble Lord, Lord Meston, because it really ties up with his amendment.
The Lord Chancellor: This also is a varied collection of amendments. I have already tried to deal with the points of the noble and learned Lord, Lord Archer of Sandwell, on Clause 12. The purpose of Clause 12 is best explained by saying that the court may realise, once the matter comes before it, that the parties have not really understood what mediation can do for them in the particular circumstances. I personally am prepared to trust the court in this matter. In a sense the existence of Clause 12 and that power means that the court can adjourn to allow mediation to take place. I think I understand that none of us would wish the court to use some oblique pressure but, on the other hand, if the court feels that the parties, notwithstanding our efforts to inform them, do not really appreciate or have understood the efforts that have been made or realise how mediation could help them in the circumstances of their particular case, the court should invite them to attend a meeting at which that would be clearly explained to them. In a sense it is just reinforcing the messages they have already got.
Of course I have very clearly heard what my noble and learned friend Lord Simon of Glaisdale says, but so far as I am concerned I think mediation involves a degree of positive contribution from both sides to the mediator in a way that is not necessarily the case in connection with compulsory adjudication. I believe the coercive power of the state is available in relation to the backing of a judge, a district judge, or indeed any other judge for that matter, in the exercise of his judicial power. The mediator is not in that capacity exactly. Therefore I personally prefer to regard mediation as voluntary. I think the courts should be given discretion, which I am confident they will use properly, to try to ensure that where mediation is appropriate the parties will understand what benefits it holds for them.
I will take advice, if I may, on the matters put forward by the noble Lord, Lord Meston, principally as drafting amendments. However, I should like to say something about the amendments dealing with mediation. I will certainly consider whether a definition would help. There is a lack of clarity among some about what is meant by "mediation" and it may well be that some definition of that kind may help. I am sad that The
On the amendments of the right reverend Prelate, I must point out that I have to be pretty careful about taking responsibility for funding. I am very sympathetic to that and have a certain degree of support which may be available. I have indicated a seminar when we may look at the matter, which should take place early in the spring, but obviously the priorities of government have to be taken into account. I am personally very sympathetic to mediation. I know that it has been well supported and I should like to see such support continue from those who have believed in it.
My final point relates to another amendment tabled in the names of the right reverend Prelate and the noble Lord, Lord Meston, and also to the corresponding amendment of my noble friend Lady Faithfull. I believe that there is a good deal of merit in having a code of practice dealing with mediation. The discussions that we have had on the Bill during the earlier stages of the Committee have, I believe, emphasised that fact. Indeed, one could have a code of practice without attempting to regulate the profession as it develops. Such a code would be a useful way of signifying to members of the profession the subject matters that Parliament had in mind for them to address. In fact, a good number of those matters were mentioned during the course of our discussion.
Therefore, at present I should like to consider the amendments. I am inclined to the view that it would be better for the Lord Chancellor to have the responsibility of issuing--and, from time to time, revising--a code of practice in respect of mediation, both in relation to children and more generally. That would give me an opportunity, for example, to put reconciliation and the need for it to be considered into the forefront of the mind of the mediator. That is not to say that the mediator would carry that out, but the opportunity for referring to services which might help in that respect would be kept in view. I believe that one could do that without, as I said, regulating the profession. So far as I am concerned, the sanction would be that the Legal Aid Board would not arrange for public money to be used in a mediation service which did not comply with the code of practice. Of course, if the new college of mediators draws up a code of its own, I would wish to draw upon it very heavily. However, I believe that there is an advantage for Parliament to be able to express to the mediators from time to time, through the Lord Chancellor, what Parliament sees as the priorities for such an important process in the new way that we are trying to handle these delicate matters.
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