ADR: Mediation An Appropriate Alternative To Adjudication In The Management of Disputes Arising from...

London South Bank University

Module: Alternative disputeResolution

Essay Title: To What Extent Is Mediation An Appropriate Alternative To Adjudication In The Management of Disputes Arising from Divorce or Separation?

30216461/12/2014

To What Extent Is Mediation An AppropriateAlternative To Adjudication In The Management

of Disputes Arising from Divorce or Separation?

Table of Contents

Introduction:......................................................2

Theory of the Third party..........................................3

Family Mediation:..................................................5

Children Mediation:................................................6

Finance and property Mediation:....................................8

All Issues Mediation:.............................................11

Conclusion:.......................................................13

Bibliography......................................................16

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Introduction: There are circumstances in which the use of ADR

(Alternative Dispute Resolution) as a mechanism for case

management is more suitable than adjudication, and management of

disputes arising from divorce is arguably one of those areas.

Historically, society and the human race have always found a way

of settling disputes. This could be in the area of family, work

or community settlement. “As early as the time of Henry II the

English society witnessed the centralization and specialization

of its judicial system”,1 and this development has evolved till

this day court and judicial system. However, the problem is as

noted by Galanter that “presumably law is corrective and remedial

in intent; it is designed to restore or promote a desired

balance. But as it becomes differentiated, complex and maze-like

in order to do this with increased autonomy and precision, the

law itself becomes a source of new imbalance”.2 Consequently, in

the 70’s a group of scholars led a movement that established what

we today know as Alternative dispute Resolution (ADR). This

1 R C Van Caenegem: The British of the English Common Law (1988 Cambridge University press) 18-23.2 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 347, 348.

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informal, and alternative way of achieving settlement without

much pain (as presumably was the case with adjudication), was met

with global acceptance, including in the United Kingdom. The Lord

Justice, in Dyson Halsey v Milton Keynes General NHS Trust [200]3 stressed that

“All members of the legal profession who conduct litigation

should now routinely consider with their clients whether their

disputes are suitable for ADR.”4 Hence, the success of its early

application has seen the central government “renovate litigation

and refurbish adjudication”,5 and by so doing incorporate ADR

into the English justice system via The Family Law Act 1996 and The Civil

Procedure Rules (CPR) 1998.

The aim of this essay is to assess the effectiveness of using

mediation as an alternative to adjudication in resolving family

disputes. Firstly, this essay will examine the third party

theory. Secondly, it will explain family mediation as well give a

concise definition of mediation and adjudication. Thirdly, it

will define, analyse, compare and assess the use of both

mediation and adjudication in resolving children, finance and

3 EWCA Civ 576.4 Dyson Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 (11).5 Simon Roberts: Mediation in the Lawyers' Embrace. (Blackwell Publishers 2011) 258.

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properties and all other issues that may arise due to breakdown

of relationship. Finally, there will be a conclusion that

illustrates and summarises all issues discussed. This essay will

argue that mediation is not an appropriate alternative to

adjudication in the management of disputes arising from divorce

or separation, and although ostensibly the use of mediation seems

appropriate in certain cases, the argument that the use of

mediation could in totality be an alternative to adjudication in

family disputes does not suffice.

The Third Party Theory: ADR has been defined by Brown and

Marriott in ADR Principles and Practice as a “Range of (informal)

procedures which serve as alternatives to the adjudicatory

procedures of litigation and arbitration for the resolution of

disputes, generally but not necessarily involving the

intercession and assistance of a neutral third party who helps to

facilitate such resolution”.6 Thus, with ADR a neutral third

party helps the disputants to facilitate conversation between

disputants, so they can reach a common settlement. ADR has

various different mechanisms by which disputes can be settled:

6 Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011) 6.

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these include but are not limited to Arbitration, Mediation,

Conciliation Negotiation, Med-arb and Ombudsman. However, the

question of whether one prefers the use of litigation over the

above mentioned alternatives depends largely on “the relative

status of the principles, their intimacy with each other, and the

degree of their organization”.7 As these approaches differs so

do their consequences. Hence, the need for an appropriate method

of processing family disputes. “The theory of third party seeks

to explain and create better understanding into when and how

people intervene in the conflict of others, and with what

consequence”.8 Generally, mediators, arbitrators and judges have

been classified as non-partisans and thereby third parties.

However, Black has argued that “supporters and lawyers commonly

relates to conflicts partly in the same manner as settlement

agent, and vice versa”. Suggesting that whether or not one is a

partisan depends largely on the nature and degree of their

intervention. A good example is a negotiator who often plays the

role of a partisan as well as that of a non-partisan. Hence, when

a negotiator is a lawyer it can be said to be adversarial,

7 Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011)7.8 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 347.

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competitive, and partisan and care less about the other party’s

interest. Whereas, when a negotiator is a mediator it is said to

be accommodating, non-partisan and focus more on resolving the

problem rather than the intentions, motives, and needs of the

involved parties. An attempt to classify the third party through

typology of partisan and non-partisan may be rather fictional.

Hence, “the whole point of resorting to a third party is often

simply to determine which principle the settlement agent will

ultimately support”9. In other words, a lawyer who is contracted

to argue for a particular principle while defending a party may

in the near future find himself arguing against the same

principle in favour of another party. This is the unfortunate

nature of the job of a professional lawyer-a supporter today and

a distinct opponent the next day. Ironically, this is what makes

lawyer’s job discrete from other types of less argumentative

profession like medics or teachers. Thus, relevant to this essay

is the involvement of mediators and judges as third parties and

how the nature and their degree of involvement worsens or

addresses the need of divorcing or separating parties and or

their children. 9 Black, D & Baumgartner, M.p Towards a Theory of the third party –Empirical theories About Court(Longman Inc, New York) 85.

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Family Mediation: Marriage and Co-habitation have in the

history of mankind been the conventional way of creating a family

(at least, a family as it is known), and it has been argued to be

the backbone of the civil society. Sadly, marriages and co-

habitations due break down leading to divorce or separation.

Perhaps, when this happen emotions runs high and settlement in

the form of face-to-fact discussion between the divorcing parties

becomes naturally impossible. Thus, lead to unnecessary hardship

to the parties, and more excruciating is the hardship that it may

cause to children of the relationship when issues like property,

finance and child care are disputed. This is where Family

Mediation or Adjudication comes in.10

To each disputant, the decision about which of these two distinct

methods to use becomes important because it may determine the

cost of divorce, the length of the conflict, the future civil

relationship between the parties and wellbeing of the children.

However, before going into the discussion about why a particular

method may be suitable and therefore appropriate in dealing with

disputes of this nature, it is paramount to look into what is

10 Family Mediation Association <http://www.nfm.org.uk/index.php/help-me-im/divorcing, http://www.nfm.org.uk/ > Accessed 10 December 2013.

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Adjudication and Mediation, and what in practice are the duties

of a judge and a mediator. Adjudication is a legal process by

which judges review evidence and listen to arguments put across

by parties or their representatives and makes a decision which

binds the parties. Accordingly, adjudication is considered a

formal method of dispute management because it is sponsored and

derives its authority through the state. Although fairness may

not always be guaranteed through the use of the court, its

resolutions are unquestionably enforceable. Similarly, mediation

is a form of ADR where a neutral third party (a mediator or

mediators) facilitates communication between disputing parties so

that they can reach a mutual settlement. At the root of mediation

is the principle of partiality and neutrality. In other words, a

mediator is prohibited from any form of coercion, whether direct

or indirect. Hence, the major difference between the process of

mediation and arbitration. In addition, the Family Mediators

Association considers that “family mediation falls into three

different categories: children mediation, finance and property

mediation and all issues mediation”.11 Accordingly, to maintain

11 http://www.thefma.co.uk/family_mediation/what_is_mediation.

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coherency and consistency this essay will adopt these categories

as defined by the Family Mediators Association.

Children Mediation: The majority of family disputes, even

when there are no financial or property disputes between the

parties involve the settlement of issues about children of the

relationship. Children disputes arising from broke down of

relation have for decades been central in in most family dispute

settlements. Typical issues include but are not limited to “where

a child would reside, who the child is to live with, how children

are to be in contact with the non-resident parent, who pays what,

how much and for how long”.12 The basic fact that children of

divorcing parents or partners should not suffer or be used as a

weapon by one party against the other is not only common sense,

it is statutorily prohibited. Section 1(1) Children Act 198913 provides

that “courts should take into consideration (a) the upbringing of

a child; or (b) the administration of a child’s property or the

application of any income arising from it, the child’s welfare

shall be the court’s paramount consideration. (2) In any

proceedings in which any question with respect to the upbringing

12 http://www.nfm.org.uk/index.php/help-me-im/a-child-or-teenager.13 Children Act 1989.

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of a child arises, the court shall have regard to the general

principle that any delay in determining the question is likely to

prejudice the welfare of the child”.14 Again, the question that

arises is to what extent is the use of mediation more suitable in

resolving disputes relating to children of divorce when compared

with adjudication?

One of the core principles of mediation is that the parties make

the decision and not the mediator. Accordingly, it has been

argued by many, including Wallerstein & Kelly that “what is in the

best interest of a child can lie in agreements between the

parents”.15 This is in line with the principle of parental

autonomy. Perhaps, since the children are theirs, they presumably

should be in the best position to decide (with exclusion of

others) what is in the best interest of the children.

Adjudication, however, follows the rule of law. Its procedural

structures regarding issues about children of broken

relationships are not only written, they are followed. Section 10

(1) Children Act 1989 gives the court power to make an order under s

14 Children Act 1989 ss 1(1) (a) (b) and s 2.15 Wallerstein J. S, & Kelly J. B (1980). Surviving The Breakup: How Children and Parents Cope With Divorce Basic Books: New York.

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816 “contact, prohibited steps, residence, and special issue

orders”.17 Consequently, this statutory provision is in direct

contradiction with the presumption of parental autonomy, and in

the order of legal hierarchy statutory provision takes precedence

over moral or legal presumption. As a result, when using

adjudication the parents can be said to be legally handicapped

under s 10 (1),18 as it is for the court to apply s 819 orders having

taken into consideration whatever the court considers to be in

the best interest of a child. The next question is does s 1020

compromise the parents’ position, and what are the effects of The

Act21 on a child? Supporters of ADR may argue that the flexibility

nature of mediation allows parties to voluntarily elect to use

mediation, and possibly arrive at a mutual agreement that

represents the interest of all the parties. However Abel has

argued that “such institutions possess distinctive advantage for

some participates and disadvantage for others”.22 Above all, even

though the provision of Children Act 1989 may suggest some level of

16 Children Act 1989.17 Children Act 1989 s 8.18 Children Act 1989 s 8, 10 (10).19 Children Act 1989.20 Children Act 1989.21 Children Act 1989.22 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 301, 302.

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certainty in this area of law, especially when using

adjudication, there exists some uncertainties about the ground in

which the court powers under s 1023 are to be exercised”.24

Therefore, while mediation seems to be a better alternative,

perhaps, ostensibly because of its informality and its

flexibility element, adjudication, arguably, offers more

certainty and clear procession.

Finance and property Mediation: “When couples separate

there are often financial and property issues to be discussed and

agreed”.25 Generally, in order to make an appropriate financial

and or property decision liabilities, and incomes, pensions,

assets to which the parties are entitled must be fully declared.26

Perhaps, it is no secret that intentional concealment of family

or individual assets by a party in divorce proceedings has in the

recent years proven to be one of the main challenges faced by

institutions involved in divorce settlements, thus rendering the

process time consuming, expensive and unpredictable, and thereby

23 Children Act 1989.24 Robert Maidment: Tuning in: A Guide to Effective Listening (Pelican Publishing Co, 1984) 34.25 Family Mediation Association <http://www.thefma.co.uk/family_mediation/what_is_mediation/finance_and_property> Accessed 11 December 2013. 26 Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34.p 82.

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exposing the parties to unsolicited publicity. The use of

mediation in settling financial and property disputes arising

from divorce or separation gives parties the opportunity to

retain the control the pace and decision making,27 and arguably,

it helps reduce case processing time, cost, and guarantees

parties’ confidentiality. Alternatively, the use of adjudication

in settling financial and property disputes arising from divorce

subject parties to the power of a court as provided by section 22,

23 and 24 of Matrimonial Causes Act 1973 and case laws. Under the Act28 a

court can make maintenance pending suit, financial provision and

property adjustment orders. Accordingly, as each family case is

unique29 “a court may choose to compensate a party for

relationship-generated disadvantages, and perhaps, share the

fruits of matrimonial partnership and give each party equal start

on the road to independent lives”.30 Whilst the use of

adjudication when compared with mediation is arguably expensive,

and may lead to unsatisfactory outcome to either of the parties,

the process is well tested and necessarily documented. Hence,

27 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 258.28 Matrimonial Causes Act, s 22, 23, 24.29 Ormrod LJ in Sharp v Sharp [1981] 11 Fam Law 121.30 House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24.

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in the absence of issues such as racism, sexism , party

capability and favouritism which sometimes surpass a judge’s fair

judgement, parties are in most cases assured of the

professionalism and fairness required of legal entities by their

respective professional bodies, and to which they often

abide/employ while presiding over cases. Thus, the effectiveness

of legal expertise combined with the principle of doctrine of

precedence, as practiced in most common law jurisdiction, serves

to guarantee consistency and certainty in the process. In

contrast, most family mediators are not legal experts. Although

most family mediators are members of some acclaimed professional

body, there remain some ambiguities as to what extent their

practice is in reality monitored, scrutinised and corrected by

the relevant body. Lack of adequate training and expertism of

most family mediators may serve to render the use of mediation as

a method of resolving disputes arising from divorce less

satisfactory when compared with adjudication. This is arguably

the case, even when lawyers, as recommended in the Baldam Report,31

are mediators. To that point, Simon Roberts argued that “the use of

31 Report of the Committee on Alternative Dispute Resolution, General Council of the Bar, October 1991.

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lawyers as mediators is a threat to the integrity of mediation”,32

holding that…

”It is a breath-taking arrogance in the

assumption that lawyers can effortlessly take on

a delicate, complex, unfamiliar form of

intervention as if it were just another part of

legal practice”.33

However, since most family mediators are non-legal qualified

(lawyers or judges), the question about the quality of services

provided by mediators remains largely unanswered. On the other

hand, the use of mediation has its advantages over adjudication.

It is a negotiated settlement; it serves to preserve parties’

relationship even after divorce.34 Future relationships between

divorcing parties are, perhaps, essential, particularly in cases

where children are involved. Furthermore, since mediation is held

in private parties avoids the risk of publicity which is

customary with adjudication. What if a party in a divorce dispute

32 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 261.33 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 261.34 Professor Robert Jackson: Mediation versus adjudication <http://www.parle-adr.co.uk/docs_media/med_v_adj.pdf> assessed 02 January 2014.

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intentionally conceals its wealth? To what extent will mediation

be useful in getting the party to unveil its concealments? At the

core of mediation is the principle of voluntarism. To mandate or

coerce a party to do anything against its will, notwithstanding

whether or not that which is being mandated was necessary for

upholding mediator’s impartiality, will strike against this

principle. Whilst the issue of concealment could pose a

considerable threat to both a mediator and the mediation process,

it certainly does not pose a threat to the court, as the court

would whenever it is fair and just draw adverse inferences

against the party in breach.35

Paradoxically, the majority of these disputes are avoidable by

the use of pre-nuptial or post-nuptial agreement. Pre-nuptial is

“a written contract between two people who are about to get

married, setting out the terms of possession of assets, treatment

of future earnings, control of the property of each, and

potential division if the marriage is later dissolved”.36 These

agreements are fairly common if either or both parties have

35 Prest v Petrodel Resources Ltd [2013] UKSC 34.36 The free Dictionary. Com <http://legal-dictionary.thefreedictionary.com/antenuptial%20agreement> Accessed 18 December 2013.

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substantial assets, children from a prior marriage, potential

inheritances, high incomes, or have been "taken" by a prior

spouse”. The English Court is of the view that these types of

contracts are not binding.37 In M v M38 it was argued by Connell J

that nuptial agreements “tend to guide the court to a more modest

award than might have been made without it”.39 One of the

arguments advanced against nuptial agreement is that it is

against the public opinion40. However, it is now considered a

factor of “magnetic importance”41 for which “judges must give due

weight”.42 Thus, nuptial agreement seems at the mean time the

only legally recognised method for which parties can avoid

finance and property disputes arising from divorce or separation.

All Issues Mediation: “All Issues mediation covers all

issues discussed above, and including but not exclusively to the

problem of contact with grandparents, family members and

friends”.43 These issues, although they are far less argued in the

37 Hyman v Hyman [1929] A.C. 601.38 [2002] 1 FLR 654.39 M v M [2002] 1 FLR 654.40 Macleod-v-Macleod (Isle of Man) [2008] UKPC64, Baroness, H. J.41 Crossley v Crossley [2007] EWCA Civ 149.42 Radmacher v Granatino [2009] EWCA Civ 649.43 Family Mediation Association < http://www.thefma.co.uk/family_mediation/what_is_mediation/all_issues_mediation > Accessed 02 January 2014.

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court, have been contended by mediation practitioners as the grey

area of family disputes which the court has totally neglected and

for which mediation, because of its localization, is the most

effective method for restoring the relationship between extended

family or friends and children of divorce, as well as the

parties. The fact that relationships between divorcing parties

and or children of divorce with their longtime friends, their

grandparents and or other family members can (in some cases) be

as important as that of children and their parents may come

across to many (more especially to those that classify divorce or

separation as a ‘private matter’) as ‘no one’s cup of tea’. It

has, however, been argued by National Family Mediation that “the

importance of close-friends or families relatives, particularly

in stressful times, are for more important than is acknowledged.

It serves as a reassurance in times of change – to both children

of divorce or separation and or any party in grief that they are

loved, and that it is not their fault”.44

44 National Family Mediation http://www.nfm.org.uk/index.php/help-me-im/a-grandparent > Accessed 02 January 2014.

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Therefore, disputes arising from divorce or separation, even when

they involve only the disputants should first be mediated. Lord

Wilson of Culworth in argued that…

“The vast majority of disputes which follow the

breakdown of a relationship, whether the parties

were married, were civil partners or otherwise, are

entirely capable of consensual settlement rather

than adjudication; and it is vital that all cases

which can be settled should be settled”45

This is arguably the case even when the issues in dispute are not

family related. It was held by the Court of appeal in Leicester

Circuits Ltd v Coates Brothers plc46 that “Success in litigation does not

stop ‘punishment’ of party withdrawing from mediation”.47 As a

result, the court seems to directly recognize the importance of

ADR, and by occasionally requiring parties to go through ADR48the

court appears to have agreed with the National Family Mediation’s

argument that there are grey areas for which the use of court is

45 The keynote address by Lord Wilson of Culworth, delivered at a reception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014. 46 [2003] EWCA Civ 333.47 Leicester Circuits Ltd v Coates Brothers plc [2003] EWCA Civ 333, p 32.48 Kinstreet Ltd v Belmargo Corp Ltd (1999) unreported. 314.

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inappropriate. Whilst, it may be argued that “a court has not

right to force parties to use ADR”,49 the view “that lawyers for

both parties are under a heavy duty only to resort to litigation

if it is unavoidable and the dispute cannot be settled by some

other non-court based mechanism”50remains a good law51. The problem

with this raising support for ADR/mediation by the court is that

it is not clear whether or not “this is part of a project to

renovate litigation, to refurbish adjudication or a move away

from courts and specialist legal personnel”.52 However, Abel has

argued that “by sponsoring informal institutions the state

increases its quantum of resources devoted to social control.

Hence, increasing the capacity of the court”.53 Perhaps, while the

court recognizes the importance of ADR as a method of conflict

resolution, Simon Robert has argued that “integrating ADR process

into the public justice system is problematic despite its

superficial attraction.”54 Suggesting, as did the National Family

49 Court of Appeal in Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002.50 Lord Woolf in Cowl -v- Plymouth City Council [2001] EWCA Civ 1935.51 Final report of the Family Justice Review.52See footnote 5 above.53 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 273.54 Simon Roberts, Towards A Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 40.

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Mediation, that a true alternative must be distinct from court

process.

Conclusion: The importance of the use of ADR as a method of

conflict resolution can hardly be over emphasised, and so is the

selection of mediation by Beldam Committee as the most appropriate

type of ADR useful in the settlement of conflicts arising from

divorce or separation. Accordingly, the use adjudication as the

formal method of conflict management has undeniably sharped and

structured the legal world. Its value and reliability are not to

be compromised, and is arguably irreplaceable. This essay has by

way of analysis explained the third party theory, its motives and

use to disputants. Furthermore, the importance of family, and

origin of family disputes were as well discussed. At the heart of

this essay were the in-depth analysis and valuation of children,

financial and property, and all issue mediation in the assessment

of mediation as an appropriate alternative to adjudication in the

management of family disputes. It was clear, perhaps, as analysed in

this essay that the use of mediation as a method of conflict

resolution when compared with adjudication is less expensive, time

effective, flexible, confidential, and so are the recognition of the

impartiality and the distinct facilitative approach of a mediator.

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To this end, Abel has argued “that what appears as help may often be

coercion, and what appears inefficient coercion may actually be the

neutralization of conflict”.55 Thus, suggesting that the promise to

redress a family disputes through mediation is somewhat illusive.

However, whether or not Abel’s argument would stand the test of time

will depend largely on the practical achievement of the use of

mediation as a tool of dispute management. Adjudication, in the

other hand, offers disputants a rather consistent and familiar

process. Although, it has been argued to be inflexible, costly and

unnecessarily ambiguous, it has since the middle age been central in

the maintenance of law and order in the civil society. How then

could the use of mediation replace that of adjudication in the

settlement of disputes arising out of divorce or separation when

mediation is “stripped of the procedural safeguards of

adjudication”?56 Does mediation “carry the risk of unregulated

coercion and covert manipulation”?57 Thus, since “the shift in

perspective is too limited”58 the answer to these questions remains

paradoxically both yes and no. What is to be borne in mind is that

55 RICHARD L. ABEL: The Politics of Informal Justice. Volume 1: The AmericanExperience (New York: Academic Press 1982) 308.56 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 26257 Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011) p 26258 Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 40.

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even in those cases where mediation is alleged to be most effective,

“there will always be a residue of such disputes which can be

resolved only by the court”.59 Perhaps, the issue remains as argued

by Galanter “The sailor overboard and the shark are both swimmers,

but only one is in the swimming business”.60

Moreover, relevant to this debate is the decline in popularity of

the use of ADR in the United States where it originated. Hence, the

question to ask is could the UK learn any lesson from the North

American experience? One of the arguments put forward by Robert was

that “contemporary findings from North America cannot justify any

blanket condemnation of alternative to state sponsored

adjudication”61. He conceded, however, that the decline of ADR as

seen in North America should encourage the UK to carefully consider

the types of disputes for which the use of ADR are desirable.

Critics have argued, perhaps, that the use of mediation as a tool

for resolving disputes may only be appropriate where gross imbalance

in power between two parties are absent. However, what is true is

59 The keynote address by Lord Wilson of Culworth, delivered at a reception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014.60 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 363.61 Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011) p 25.

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the need to acknowledge the limitation of any attempt to explain the

profile and outcome of litigation necessarily by comparing a country

with another, as “societies are made up not only of multiple

disputes processing institution but institution of diverse types”.62

Generally, the risk of adopting only mediation as an alternative to

adjudication, even just in the area of resolving disputes arising

from divorce does not suffice. It follows that not only are there

uncertainties in the quality of services provided by most mediators;

the increase of state control through the use of informal

institutions is to be discouraged. Accordingly, it is submitted

therefore, that the use of mediation are limited in principle. Yet,

even when it is used, its enforceability depends largely on goodwill

of the parties. Our present civil society is not ready for justice

that is based on lofty goodwill. Thus, we still love adjudication.

(Word count: 4026)

BibliographyCases:

Cowl -v- Plymouth City Council [2001] EWCA Civ 1935

Crossley v Crossley [2007] EWCA Civ 149

62 Marc Galanter: Afterword: Explaining Litigation (9 Law and Society Rev. 1975) 365.

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Dyson Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ576 (11)

Goodman v Gallant [1986] 2 WLR 2 [2004] EWCA Civ 546

Halsey v Milton Keynes General NHS Trust (2004) 1 WLR 3002

Hyman v Hyman [1929] A.C. 601

in Prest v Petrodel Resources Ltd [2013] UKSC 34.p 82

Kinstreet Ltd v Belmargo Corp Ltd (1999) unreported. 314

Leicester Circuits Ltd v Coates Brothers plc [2003] EWCA Civ 333, p 32

M v M [2002] 1 FLR 654

Macleod-v-Macleod (Isle of Man) [2008] UKPC64, Baroness, H. J

Miller v Miller; McFarlane v McFarlane [2006] UKHL 24

Oxley v Hiscock [2004] EWCA Civ 546

Prest v Petrodel [2013] UKSC 34

Prest v Petrodel Resources Ltd [2013] UKSC 34

Radmacher v Granatino [2009] EWCA Civ 649

Sharp v Sharp [1981] 11 Fam Law 121

Stack v Dowden [2007] UKHL 17

Young v Young [2013] EWHC 3637 (Fam)

Legislations:

Matrimonial Causes Act 1973.

The Children Act 1989.

Trusts of Land and Appointment of Trustees Act 1996.

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Books

Black, D & Baumgartner, M.p Towards a Theory of the third party –Empirical theories About Court(Longman Inc, New york) 85.

Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011) 6.

Henry Brown and Arthur Marriott: ADR Principles and Practice (3rd edn, London, Sweet & Maxwell, London, 2011)7.

R C Van Caenegem: The British of the English Common Law (1988 Cambridge University press) 18-23

Robert Maidment : Tuning in: A Guide to Effective Listening (Pelican Publishing Co, 1984) 34

Wallerstein J. S, & Kelly J. B (1980). Surviving The Breakup: How Children and Parents Cope With Divorce Basic Books: New York

Journal Articles:

• ABEL, R, the Politics of Informal Justice. Volume 1: The American Experience (New York: Academic Press 1982).

• Black, D & Baumgartner, P, Towards a Theory of the third party–Empirical theories About Court (Longman Inc., New york).

• Brown, H & Marriott, A, ADR Principles and Practice (3rd edn, Sweet & Maxwell, London, 2011).

• Fiss, O, Against Settlement (Yale Law Journal 1984).

• Galanter, G, Afterword: Explaining Litigation," 9 Law and Society Review 347 (1975) .

• Gilmore, S and Glennon, L, Hayes and Williams’ Family Law (3rdedn, Oxford University Press 2012).

• Roberts, S & Palmer, M, Dispute Processes (2nd edn, Cambridge University Press 2008).

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Simon Roberts, Mediation in the Lawyers’ Embrace (Blackwell Publishers 2011)

Simon Roberts, Towards a Minimal Form of Alternative Intervention (California: Jossey-Bass 2011)

• Wallerstein, J & Kelly, J, (1980). Surviving the Breakup: How Children and Parents Cope With Divorce (Basic Books New York 1980).

Online Articles:

Family Mediation Association < http://www.thefma.co.uk/family_mediation/what_is_mediation/all_issues_mediation > Accessed 02 January 2014

Family Mediation Association <http://www.nfm.org.uk/index.php/help-me-im/divorcing, http://www.nfm.org.uk/ > Accessed 10 December 2013

Family Mediation Association <http://www.thefma.co.uk/family_mediation/what_is_mediation/finance_and_property> Accessed 11 December 2013

National Family Mediation http://www.nfm.org.uk/index.php/help-me-im/a-grandparent > Accessed 02 January 2014

Professor Robert Jackson: Mediation versus adjudication <http://www.parle-adr.co.uk/docs_media/med_v_adj.pdf> assessed02 January 2014.

The free Dictionary. Com <http://legal-dictionary.thefreedictionary.com/antenuptial%20agreement> Accessed 18 December 2013

The keynote address by Lord Wilson of Culworth, delivered at areception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law < http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014

The keynote address by Lord Wilson of Culworth, delivered at areception at The Reform Club on 29 November 2011 hosted by Collaborative Family Law <

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http://www.familylawweek.co.uk/site.aspx?i=ed90145 > Accessed 02 December 2014

Internet Sources:

• http://www.nfm.org.uk/index.php/help-me-im/a-child-or-teenager

• http://www.thefma.co.uk/family_mediation/what_is_mediation

Official (Government) Publications and Reports:

Final report of the Family Justice Review Report of the Committee on Alternative Dispute Resolution,

General Council of the Bar, October 1991.

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