"Wrong time to force mediation on couples set for divorce"

Since writing this column I have discovered that there will be less than 100 mediators qualified to undertake these assessments by April 6th. To place that figure in context, there were 126,496 divorces in 2009.

I also mention in the piece that mediation should come later. One possibility is that there shouldn’t be a Financial Dispute Resolution (FDR) hearing until an assessment for mediation has taken place. This should ease the burden on the courts but also permit mediation to take place at a suitable opportunity for both parties.

From the Opinion pages of the Yorkshire Post, 24/02/2011.

Wrong time to force mediation on couples set for divorce

By Marilyn Stowe

BACK in 1996 I was trained as one of the first specialist family law mediators in the UK. At that time we were still emerging from a recession and among the greatest casualties were marriages.

The divorce rate shot up in the mid-Nineties and I’ve no doubt that the government of the time was deeply concerned by the inescapable statistics. Acting on the belief that divorce had to be avoided at all costs, the then Conservative government was introducing a law to try and make it as hard as possible for married couples to divorce. As part of those proposals, mediation was being pushed hard as an alternative to a court judgment.

I decided to train up some of our family lawyers as mediators. Training involved a week of intense hard work; learning how to help a couple in crisis and deal sensibly with their problems without the supervision of a judge.

My firm brought over a specialist mediation trainer from New York because we wanted to be at the forefront of this new field and thought we would become very busy. As it happens mediation generally failed as a widely used alternative to the courts.

It failed for a number of reasons, but mainly because there was no obligation to mediate unless the divorcing couple sought legal aid. And even then, most people who attended a preliminary interview were deemed unsuitable.

Since then I have persevered and had some real successes. I am a believer in mediation and that is why I recently formed a new specialist mediation practice, Stowe Family Law Settlements. I believe that divorce figures, which are at their lowest since 1977, will soon start to rise. During recessions I have found the numbers of divorcing couples drop as the money simply isn’t there to make it possible. But the pressures are still there – particularly for middle-class families who are hard hit by unemployment, tax rises and inflation.

Marriage will once again be a casualty of recession, and I have a feeling that the latest Conservative government knows this only too well. It also knows that it needs to lower the substantial legal aid bill and reduce the pressure on our overcrowded courts. So the latest requirement that from this April all divorcing couples will first have to attend an Assessment for Mediation Interview before making a financial or children related application to the court is part of a strategy that addresses all of these points. But has it been sufficiently thought through?

I have serious doubts. For one there simply aren’t enough mediators to go around. A get-out clause is also provided for couples that can’t arrange appointments with three different mediators close to their home, in a time frame of 15 days. In rural areas there may be no mediators nearby, and in cities and towns mediators may be too pressurised to see all prospective applicants.

But more importantly, to stand any chance of success, the process has to be voluntary. At the start of a divorce one or both members of a couple are usually full of distrust and it just isn’t the right time to begin a “touchy-feely” mediation process. I can certainly foresee a number of couples being instantly dismissive of an approach that can’t compel the disclosure of all financial assets– a common problem in many divorces, remedied only via a court ordered timetable.

So I suspect in financial cases many couples will consider the requirement to attend an assessment meeting as yet another useless and expensive hurdle. They will no doubt try hard to apply one of the get out clauses so that their case can be heard faster in front of an experienced judge. Why further elongate the process and wait even longer for a court hearing?

So what is the remedy? For mediation in financial cases, particularly those involving complex assets, I see the advantage coming further down the line; when emotions are cooling down, financial disclosure has been given, and both parties – not just the wealthier spouse – feel sufficiently empowered to negotiate a consensual settlement. Mediation can then take place faster than overloaded courts and cheaper too.

But then, I’m a lawyer. I want my clients to sort themselves out at the right time, in a dignified, cost effective way. I don’t like handing over control of my clients to a judge and I will always settle a case if I can.

Of course I support mediation. But reducing the strain on our courts and cutting the legal aid bill isn’t part of my remit, nor should it be a burden that divorcing couples have to bear.

Marilyn Stowe is senior partner at Stowe Family Law.

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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5 comments

ObiterJ - February 24, 2011 at 8:18pm

I think that the 1990s reforms reflected the views of the Scottish Lord Chancellor of the day – Lord MacKay of Clashfern.

Jenny Beck (Managing partner at TV Edwards LLP) writes in the Law Society Gazette 24th February that it is both naive and dangerous to suggest that mediation is an alternative to litigation. It has a real place in family disputes “but it is only appropriate where both parties are willing and able to engage in a balanced and child-focused way.” As you say, many people are not in that frame of mind when divorce proceedings are issued.

Beck also writes about Ancillary relief cases being under threat. The Green paper proposes to exclude these cases where domestic violence is not present. (Narrow definition of DV adopted by government and not the Yemshaw standard).

Marilyn Stowe - February 24, 2011 at 10:13pm

It is frustrating to see such a great opportunity set sail on course for catastrophe from the outset.
Mediation is incredibly useful for saving costs both for the couples involved and the state, but must be intelligently applied so it can make those much needed serious savings across the board. Has the Government and Opposition harnessed the skills of those with proven experience in the field who do know what needs to be done?

Randal - February 25, 2011 at 1:17am

Marilyn I read your post with interest. Compulsory mediation or family dispute resolution as it is called under our Family Law Act has now been in place for a couple of years. I can comment that whilst at times the process is initiated soon after separation it has still been a useful and productive process to impose on separating parents in relation to children’s issues. Property issues do not require compulsory mediation prior to commencing proceedings at this point but that might eventuate in the near future. Can I suggest you read the provisions in our Family Law Act at section 60I.

We have had training sessions conducted by the Federal Attorney Generals Department and we now have many lawyer and non-lawyer mediators. The qualifications and training needed is quite onerous resulting in quality mediatons being conducted.

The compulsory mediations while sometimes conducted at inappropriate times still help the parties and often even if a final arrangement cannot be made interim agreements are often put in place and further mediation sessions of the arranged or the interim arrangement will remain in place until one of the parties commences court proceedings.

Whilst it is true that the parties are coming to mediation because they are required to I find it is often the case that as a mediator I can help them focus on the best interests of the children. In short it is our experience in Australia that early compulsory mediation is effective.

Marilyn Stowe - February 25, 2011 at 2:35pm

Randal thanks very much for this, its very interesting. I agree with what you say in relation to children, and can see no harm in early mediation, in fact the sooner, the better.
But in relation to finances, the field in which I specialise, compulsory referrals to mediation from the outset seems to me to be wrong for the reasons I outline.
I am far from convinced that couples voluntarily give each other full, frank and wholly accurate disclosure of their finances as they are obliged to do, and for most couples, court ordered disclosure seems to me to be a prerequisite before mediation has a realistic chance of being successful because both parties have to trust the information they have before negotiating on it.
As I state at the beginning of the post, I think the protocol should take effect in finances a little later, and prior to the FDR hearing in our process. I would suggest there should be no FDR before there has been a mediation assessment. At that stage I think mediations will work very well indeed, it would keep costs contained, encourage amicable settlements and reduce the pressure on the courts.
I hope this explains my position a little more.
Thanks so much for commenting. Please keep posting!
Regards and best wishes,
Marilyn

Judy Park - February 25, 2011 at 5:18pm

I welcome your comments Marilyn and share some of your concerns. Mediation is not suitable for everyone. In my experience perhaps 30% of people I see for assessment meetings go on to mediation. However a compulsory meeting with a mediator (without ex partner present) can give the mediator an opportunity to provide the client with information about the mediation process. Advantages and disadvantages can be discussed and then the client can make an informed choice. It also gives the mediator time to talk about what children need from their parents at this time and help parents take a look at the issues from their children’s perspective.
Mediation itself must always be voluntary. It is stressful, tiring and frustrating (for the mediator as well!!!) but can produce good outcomes for children and parents alike.
We must seize this opportunity and run with it. It is going to be a muddly mess for a while because it has not been given enough thought, but I am prepared to rise to the challenge.
Mediation should be tied in more closely with the SPIP programme. Parents who have been on the SPIP course have commented that they wished they had come along sooner.
My best regards
Judy Park

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