Family Law Mediation
Since April 2011, mediation has been placed at the forefront of resolving disputes between husbands and wives in the event of the breakdown of the marriage. Nonetheless, it has received a mixed press.
There are some who argue that mediation is a panacea and that it should result in very few cases at all coming before the courts for resolution by a Judge.
They refer to the way in which a referral to mediation is now expected to take place prior to the issue of children or financial proceedings by one spouse against the other. They argue that it is better for a couple to resolve their differences by discussion and negotiation rather than in a courtroom.
Before issuing proceedings, the parties are encouraged to obtain a certificate from the mediator to confirm that they have been to mediation and that it has simply not worked – possibly because one or both parties did not wish to participate in the process; possibly because of entrenched positions.
On the other hand, there are those that argue that mediation is fundamentally flawed. The mediators are not doing anything new given that pro-active and pragmatic solicitors have always sought to resolve these types of cases by way of agreement instead of going to the court for a decision from the Judge. They point out that mediation is really little more than a roadblock along the route to a sensible solution and that it actually impinges on the resolution of the case by adding another hurdle for the parties to get over before it can be heard by the court. They also point to the way in which the court system itself promotes agreement.
For example, in respect of financial disputes, the parties must attend a Financial Dispute Resolution hearing where the Judge will give his opinion about what the settlement should be. That opinion is “without prejudice” and although it is not binding upon the parties, it is persuasive and it often leads to a settlement on that day or soon afterwards. The jury is still out on mediation given that it was only made compulsory in April 2011. Nonetheless, there is no doubt that it has resulted in a downturn of work for many divorce practices.
As to whether or not mediation achieves what the Government hopes it will achieve – it is simply a matter of conjecture. Nonetheless, it does indicate the approach that the law is now taking to these types of cases. The stringent cutbacks in Legal Aid for divorcing husbands and wives, add to the difficulties of getting them before a Judge with the help of legal representation.
The result is that the courts are increasingly being used by litigants in person who often have no real understanding of the relevant procedure or legal principles involved in those proceedings. These result in delay and a lengthening (rather than a shortening) of the legal process in some cases.