Mediation, financial remedies, information provision and legal advice: the post-LASPO conundrum

Hitchings, Emma; Miles, Joanna

doi:10.1080/09649069.2016.1156888

Cited by 6 publications

(5 citation statements)

References 10 publications

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“…The practice of the judiciary providing directions and evaluating the strengths and weaknesses of the cases is beneficial for not only the parties but also the legal system and different stages of the proceedings (including the mediation stagecf. Hitchings and Miles 2016;Holt and Thomson 2023). It is mainly at the FDR stage that this benefit is fully embraced by the judiciary who evaluate the positions of parties and encourage negotiations.…”

Section: Discursive Practices In Financial Remedy Proceedingsmentioning

confidence: 99%

Legal-Lay Discourse and Procedural Justice in Family and County Courts

Grieshofer

2024

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Focusing on adversarial legal settings, this Element explores discursive practices in court proceedings which often involve unrepresented parties – private family proceedings and small claims cases. Such proceedings present the main caseload of county and family courts but pose immense challenges when it comes to legal–lay communication. Drawing on court observations, alongside textual and interview data, the Element pursues three aims: (1) developing the methodological and theoretical framework for exploring discursive practices in legal settings; (2) establishing the link between legal–lay discourse and procedural justice; (3) presenting and contextualising linguistic phenomena as an inherent part of court research and practice. The Element illustrates how linguistic input can contribute to procedural changes and court reforms across different adversarial and non-adversarial legal settings. The exploration of discursive practices embedded in court processes and procedures consolidates and advances the existing court research conducted within the fields of socio-legal studies and forensic and legal linguistics. This title is also available as Open Access on Cambridge Core.

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Section: Discursive Practices In Financial Remedy Proceedingsmentioning

confidence: 99%

Legal-Lay Discourse and Procedural Justice in Family and County Courts

Grieshofer

2024

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“…This gives greater freedom for parties to rely on religious and/or personal laws in addition to or as an alternative to state laws. Whilst many mediators (particularly those accredited by the FMC) are qualified lawyers, they are not practicing in this capacity in their role as a mediator and instead their role typically involves providing impartial information to assist the parties in reaching a resolution, which may not necessarily be supported by the state law (Hitchings and Miles 2016).…”

Section: Mediation As Evidence Of Legal Pluralismmentioning

confidence: 99%

“…Moreover, many clients will not wish to rely on religious or personal laws throughout mediation and will align their settlement proposals to an outcome that may be reached by the family courts. Challenging the idea that mediators are 'neutral', they can support disputants either by flagging up problematic issues with settlement proposals or by more explicitly highlighting where proposals are inequitable (Hitchings and Miles 2016). In addition, the FMC Code of Practice states that 'if the parties consent' the mediator may inform them that the resolution that they are considering falls outside the parameters which a court might approve or order ( 2018 This argument is particularly credible in light of the fact that many parties no longer have access to legal advice which was previously used 'to good collaborative effect' to support parties undertaking mediation (Barlow 2017, 205).…”

Section: Mediation As Evidence Of Legal Pluralismmentioning

confidence: 99%

“…The extent of the mediator's involvement in the process and the parties' ability to meet their objectives is also likely to be driven by the type of mediation entered into. The two dominant types of mediation in England and Wales are settlement-seeking mediation and transformative mediation (Hitchings and Miles 2016). Outside of mediation regulated by the FMC, mediation can also have reconciliatory aims which is particularly common in religious tribunals.…”

Section: Can Mediation Facilitate Procedural and Substantive Justice?mentioning

confidence: 99%

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Just-ish? An analysis of routes to justice in family law disputes in England and Wales

Speed

2020

The Journal of Legal Pluralism and Unofficial Law

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It is widely documented that the formal family justice system in England and Wales is in crisis.The family courts are plagued by delays and backlogs, whilst parties struggle to secure access to advice and representation due to cuts to public funding. Increasingly, litigants face economic, physical and cultural barriers to courts brought about by rising court fees, reforms to the court system and demographic changes which have resulted in diverse family forms for whom the family courts may have little legitimacy. The first part of this article examines how recent changes to family law and policy in England and Wales have reduced the ease with which parties are able to achieve procedural and substantive justice through the family courts. The second part of the article analyses how forums of dispute resolution which are delivered by non-state actors, but which rely on the state for their authority, have evolved to fill this justice gap and are therefore indicative of a move towards 'weak' legal pluralism in the context of family justice. It is argued that although the family courts are still an important cornerstone of the justice landscape, alternative forums of dispute resolution increasingly play a positive role in enabling disputants to achieve their procedural and substantive goals and this is strengthened by a weak approach to legal pluralism which upholds the autonomy of the parties whilst also ensuring necessary protections and safeguards for vulnerable litigants. The article therefore challenges critics of weak pluralism, who perceive that reliance on state recognition precludes institutions playing an important role outside of the state hierarchy.

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“…However, many may be unable to afford professional legal advice or representation to resolve financial and property matters (Trinder et al 2014). Consequently, self-representation in family law cases has increased post-LASPO (Cobb 2013;Cookson 2013;Trinder et al 2014;Eekelaar 2015;Hitchings and Miles 2016;Barlow et al 2017). As we show here, this results in greater demands on legal practitioners and advice centres to provide new kinds of legal advice and assistance to divorcing couples, especially when one party is self-represented.…”

Section: Introductionmentioning

confidence: 99%