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Baroness David: My Lords, I am very grateful indeed for that very full and indeed interesting answer from the noble and learned Lord. I quite understand that he is taking a different attitude to marriage guidance counsellors and to mediators as far as the amendment is concerned. I am very grateful that he intends to bring forward amendments, possibly at Third Reading. That is a substantial concession from the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Directions with respect to mediation]:

The Lord Chancellor moved Amendment No. 81:


Page 7, line 7, leave out ("the parties") and insert ("each party").

The noble and learned Lord said: My Lords, in moving Amendment No. 81 I wish to speak also to Amendments Nos. 82 to 84, and to Amendment No. 85 in the name of the noble Earl, Lord Russell.

The amendments are intended to clarify the provisions with regard to meetings. I have tabled the amendments to make it clear that where parties are directed to attend meetings with a mediator for an explanation of mediation under Clause 11 they can attend those meetings separately, either at their own request or at the direction of the court. Concern was expressed at Committee stage by the noble and learned Lord, Lord Archer of Sandwell, on the possibility of intimidation where parties are required to attend together. I agree that that is something we should take all practical steps to avoid.

In addition, Amendment No. 82 makes it clear that each party should be given the opportunity to express his or her own view as to whether he or she wishes to pursue mediation at or after that meeting.

The noble and learned Lord, Lord Archer of Sandwell, also sought to make amendments to this part of the Bill, which makes special provision where there has been domestic violence. However, I am wary of imposing too many conditions in these matters. Mediation is not always inappropriate in cases of domestic violence; for example, where the violence occurred a long time in the past. In any case, people can be intimidated by their partners in many more ways than simply by physical violence. I therefore think it more valuable to make these broad amendments which allow parties to attend meetings separately in all cases if they wish to do so or the court considers it appropriate, and allow them to express their individual views as to whether or not they wish to proceed with mediation, having heard about and, better still one hopes, having understood what mediation is about.

The noble Earl, Lord Russell, sought to address this matter. From a communication that I have received from him, I think he was reasonably content with the way that I have addressed it. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 82 to 84:


Page 7, line 11, leave out ("the parties with an opportunity") and insert ("an opportunity for each party").

4 Mar 1996 : Column 41


Page 7, line 17, at end insert--
("( ) The parties are to be required to attend the same meeting unless--
(a) one of them asks, or both of them ask, for separate meetings; or
(b) the court considers separate meetings to be more appropriate.").
Page 7, line 20, after ("meeting") insert ("or meetings").

The noble and learned Lord said: My Lords, I have already spoken to the amendments, and I beg to move them en bloc.

On Question, amendments agreed to.

[Amendment No. 85 not moved.]

Clause 12 [Adjournments]:

Lord Irvine of Lairg moved Amendment No. 86:


Page 7, line 30, at end insert ("provided that no adjournment may be ordered by the court with a view to inducing a party who has declined to participate in mediation to do so").

The noble Lord said: My Lords, I rise to move Amendment No. 86 to Clause 12 (1)(b), which provides for the court's power to adjourn for the purpose of enabling disputes to be resolved amicably.

There is a mistake in the Marshalled List. It states incorrectly that the amendment is at page 7, line 40. It is not: it is at page 7, line 30, at the end of Clause 12(1)(b), where the amendment proposes to add the words as moved.

The unquestioned general principle, which the Government assert time and time again, is that participation in mediation must be voluntary and not compulsory. The purpose of the amendment is to ensure that there are no restrictions--direct or indirect--on the generality of the proposition that mediation must be voluntary.

We know 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 mediator, and perhaps not be able to speak up for herself as she would wish, both for herself and for the children. Let us suppose that she would prefer to be legally represented in court.

As I mentioned in Committee, 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 may hold for women. There are many who agree with her. The proposition that mediation, however hard the mediator tries, is always even-handed between the parties does not win universal acceptance from those who know about mediation in practice.

I come to the amendment. I understand only too well that, in the ordinary way, a court can adjourn any proceedings if it believes that that will facilitate a private agreement between the parties. Courts do say in practice to parties that there may not be much sense in going on with the battle and suggest that the parties go off to see if they can settle the matter between themselves. That often happens. However, I am

4 Mar 1996 : Column 42

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 if mediation is truly voluntary. It is critical that a court should never be entitled to adjourn court proceedings with a view to inducing a party whom the court thinks should be mediating to participate in mediation when that party has already decided not to do so. The point of the amendment is that it should be made plain that no court pressure of any kind may be brought on individuals to induce them to participate in mediation after they have decided not to do so.

In Committee the noble and learned Lord said:


    "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--[Official Report, 23/1/96; col. 1023.]
I may have misunderstood the noble and learned Lord, but to me that sounds uncomfortably as if he were approving of the court granting adjournments to pressure people into mediation when they have taken a principled decision not to take part in mediation--a process which we are constantly assured is voluntary. The principle of voluntariness is undermined if the court is empowered to adjourn court proceedings for the purpose of enabling a dispute to be resolved through mediation when mediation has been refused by one party. I beg to move.

The Lord Chancellor: My Lords, this is not the right time to go into detail about the research on mediation. However, the general findings with regard to mediation are that men and women both describe the process as fair, and women have reported a sense of empowerment and feel that their interests are articulated and treated with respect during the mediation process.

I agree entirely that mediation should be voluntary. That is the basis on which I have put all this forward. Coercive mediation such as, for example, some of the programmes one sees in the United States, may result in women feeling under pressure to reach unsatisfactory settlements. Much of the criticism of mediation that has been voiced from some quarters is based on mandatory, settlement-orientated programmes, in the United States, which are quite different from those which are in operation here.

I do not accept that the amendment is necessary. I feel sure that the court would not seek to impose mediation on people who did not want it. I think it inappropriate that we should, in a sense, limit the powers of the court in a way that I do not think anyone suggests the court would be likely to act. A court "inducing" someone to do something strikes me as perhaps not as appreciative of the fairness and impartiality of the court as some other form of words might be. I believe that our judges who deal with these matters are very sensitive to the attitudes of parties.

Therefore, while I entirely subscribe to the view that if mediation is to be successful it must be entirely voluntary, I do not agree that it is necessary that we put

4 Mar 1996 : Column 43

the amendment into the Bill. So far as I know, there is no suggestion whatever in the Bill that the court may adjourn for any purpose analogous to this.

I wish to correct something. It has been drawn to my attention that, a few moments ago when speaking to an earlier amendment, I referred to Amendment No. 99A as my amendment. The propriety in that amendment belongs to the noble Lord, Lord Stallard. The Marshalled List has changed slightly since what I said was put together. I should have referred to Amendment No. 99B. Delighted as I am to refer to the noble Lord's amendment, on this occasion I had in mind to refer to my own.

I hope that, in the light of the explanation, the noble Lord, Lord Irvine of Lairg, may feel it appropriate not to press his amendment.

5 p.m.

Lord Irvine of Lairg: My Lords, I confess that I am somewhat disappointed. I believe that it is important that mediation be voluntary. The sole purpose of the amendment is to ensure that it is. If "inducing" is a hard word to use of a court seeking to persuade an individual into a course of action which the court thinks more appropriate, I should be happy to soften the provision by using "encouraging" rather than "inducing" if that removes the offence.

However, I take it that the noble and learned Lord does not accept the amendment, and I certainly do not press it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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