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FDR research shows self-representation problems

24 February 2016

The Ministry of Justice has released research carried out in 2015 on the Family Dispute Resolution (FDR) service and the impact of mandatory self-representation.

The qualitative research, Evaluation of Family Dispute Resolution Service and Mandatory Self-representation, took place from March to July 2015. It consisted of semi-structured interviews with 67 parents who had been to at least one session of FDR mediation, 28 FDR mediators, 10 Family Legal Advice Service (FLAS) lawyers and 11 representatives of FDR accreditation or supplier organisations.

The researchers say that the qualitative data does not provide information on the experiences of parents who did not have any involvement with FDR or who had some contact but did not provide a mediation session.

They say the sampling method and sample size mean the evaluation findings cannot be generalised across all parties and practitioners in the family justice system.

Looking at the effect of mandatory self-representation, the report says parents found the concept of self-representation appealing because they thought that excluding lawyers would simplify court proceedings and reduce costs.

A few of the parents found representing themselves in the Family Court straightforward. However, most interviewed parents found it difficult to represent themselves in the Family Court.

"They were anxious about representing themselves well in court, especially as the outcome of the court proceedings would be a care arrangement that would affect their day-to-day interaction and longer term relationships with their children. The courthouse and formal court protocols were unfamiliar territory for many of the parents, so they found being in court intimidating."

Some parents felt disadvantaged because they believed they were unable to express themselves well. Several had sought formal and informal legal advice to help them understand the process. The report says their perception of having to represent themselves was influenced in part by the extent of the legal advice they received.

"Amongst lawyers there appears to be variable practice around, for example, advising self-represented parents about what to expect in the courtroom."

Parents' perception of self-representation was also influenced by the helpfulness of Family Court staff, the efficiency of court administration, and the demeanour of the presiding judge.

Most Family Court Judges and court staff members expressed concern about the concept of mandatory self-representation.

"More specifically, several Family Court Judges and court staff members felt that it was unreasonable to require parents to represent themselves in some proceedings without a lawyer. Separating parents are usually in a heightened emotional state when they enter court and are thought by judges to lack objectivity."

Several staff members and judges also stated that court proceedings involving self-representation are longer than those where lawyers represent parents.

"Almost all of the judges and court staff, and a few of the FLAS lawyers, mentioned that parents should be allowed to have a lawyer in all stages of the Family Court process," the report says.

"They felt court proceedings would be fairer because lawyers provide a 'level playing field', and more efficient because lawyers can summarise the issues under dispute and 'reality check' their clients' requests. They noted that parents could still be asked to contribute to the cost of legal aid lawyers."

While it was acknowledged that the Ministry of Justice has produced guidelines on self-representation, many of the legal and court professionals felt that parents were too focused on contact with their children to read the information.

Last updated on the 16th September 2019