John Hooper & Co

Solicitors

Newsletter 31 – Is Mediation the Way Forward?

On 1st April 2011, the Government announced that before an Application for an Order in financial or children proceedings is submitted to a Court, the proposed Applicant should (not must) make a referral to an approved Mediator to see if the issue might be resolved by process of mediation rather than by litigation.

Mediation has been around for a while now. It is one of several available methods of resolution of disputes which does not involve formal Court proceedings. It requires the voluntary attendance of both parties to a dispute before a Mediator (often a solicitor). The role of the Mediator is to encourage the parties set out their respective positions, views and wishes to the other. By doing so the parties are encouraged to understand the other’s position and to try to reach a compromise solution to their disagreement.

However the Mediator is not allowed to give advice to either party about the merits or otherwise of their respective cases. The parties are encouraged to seek advice from their own solicitor during the mediation process and particularly if they have reached the basis of an agreement.

Mediation is not for everyone. It has been utilised successfully in only a relatively small number of cases.

However the Government, seeking to reduce the number of cases before the Courts (and thus the costs of running them), has indicated that whilst a prior referral to mediation is not obligatory, proceedings issued without such a referral might later be adjourned for such an avenue to be explored. There are also potential costs sanctions.

However, as previously indicated, mediation is essentially a voluntary process and if the other spouse or parent does not wish to participate, a formal application can be issued.

Time will tell whether the mediation process will become more popular as a result of this Government initiative.

Stop Press

MPs have voted against the adoption of the recommendations of the Law Commission who advised that heterosexual couples, who had lived together for more than 2 years, without being married, should acquire rights to pursue financial claims and inheritance rights against the other. The Government has announced that this issue will not be considered again during the course of the current Parliament.

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