Family mediation is a waste of time (from Solicitors Journal)
From my latest Solicitors Journal column “Family Business”, 15/10/2012.
Why is the government so intent on forcing people into mediation when this is patently not delivering results, asks Marilyn Stowe
Nine months on from the excitement surrounding the launch of family law arbitration, and over a year since the government introduced Mediation Information Assessment Meetings, has the alternative dispute resolution cause moved any further forwards?
I asked myself this question following Resolution’s Family Dispute Awareness week at the end of September. Far from triumphantly heralding the appetite for ADR in England and Wales, it was a reminder that the public is either unaware or indifferent to the options available to them outside of the court process.
A survey they conducted showed that 45 per cent of people believe that divorce involves a visit to court. And there were a further two statistics that illustrated just how conflicted and confused opinion is: while 53 per cent were keen on “ensuring that the divorce is as conflict-free as possible”, 40 per cent agreed that “divorces can never be without conflict.”
In many ways it would seem that the case for ADR has never been stronger. We are seeing a surge in individuals representing themselves as legal aid dries up, few of whom have any desire to end up in court but that is where they are. In the current economic climate, alternatives to the court process also seem to make financial sense.
And yet it isn’t happening, the bounce into ADR just isn’t there, despite the best efforts of everyone who thinks it is a viable, credible alternative. So why not?
It seems pretty clear that family law practitioners face a huge challenge in building awareness of exactly what ADR and its various strands entail. Mediation and collaborative approaches have been around for years, and while many people are at least aware of some of the advantages, few are keen to take the plunge.
My firm decided to promote mediation and arbitration in October by offering a fixed fee for suitable cases throughout the month – an idea championed by other family law arbitrators this autumn. And while this may help to increase knowledge of the disciplines in certain quarters, from what I have seen so far (and I trained as a mediator back in the 1990s) I think we are all in fact wasting our time. While we try our best to attract clients and the government is making every possible move it can to force couples out of court, what is happening on the ground?
The courts are flooded with litigants in person, a trend that will only increase when legal aid for most family cases is abandoned from next April. Approximately 200,000 extra litigants in person are expected to make their applications to the court. Apart from a court fee – from which many court goers will be exempt – there is no additional cost. There is immediate and free access to the judiciary, who now have no choice but to put on a brave face and cope. Despite all the alternative methods to resolve disputes and the best efforts of government to wean people off the courts, the public still vote with their feet and head into the courtroom.
In doing so I think they are sending out the clearest possible signal to us all. They aren’t impressed by the alternatives. They trust the courts. They have confidence in the outcomes they produce and aren’t interested in quasi-judicial systems, or ‘touchy-feely’ alternatives.
We too perhaps may have been sold a pup. After all, we are first and foremost family lawyers; trained to work within a family justice system, not a system that limps alongside simply because government has determined it should be pushed hard as a cheaper option for the public purse.
We’ve all bought into ADR – I suspect without doing enough research of our own with the people who count. And like it or not we have our answers; a court system in meltdown is proof enough that this is not what people want.
Photo by Incase. under a Creative Commons licence
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14 Comments
JamesB on October 16, 2012 at 1:05 pm
I would make one criticism of the legal profession here. They will not negotiate or deal with LIPs.
I agree the lack of an alternative is evident. Perhaps is why so many are unmarried.
Marilyn Stowe on October 16, 2012 at 3:30 pm
James
In all the ADR I have done, I have been dealing with couples themselves. Those cases I have done have been very successfully concluded, so from my perspective, its not lack of will or skill its just that people want to go to court!
Regards
Marilyn
Graham on October 16, 2012 at 8:22 pm
Good for you with those. My ADR experience was not so successful. It wasn’t that we wanted to go to court though, it was perhaps we didn’t have as good an arbitrator.
steve on October 17, 2012 at 6:12 am
When the average solicitor charges over £300 per hour, why are we not surprised we have LIP’s. Especially when these highly paid solicitors only response generally is “wait to see what the Court decides”. Save the £300 per hour and let the Court decide, be a LIP!
Nick Langford on October 17, 2012 at 6:47 am
I think you may have missed the obvious explanation which was summed up some years ago by the US academic Stephen Baskerville in his book Taken into Custody,
‘no rational party concedes anything in mediation that they know they will win in court.’
JamesB on October 17, 2012 at 1:28 pm
I do think that Nick has just hit the nail on the head and where the real problem lies (court decisions and precedents).
JamesB on October 17, 2012 at 1:37 pm
I must say, asking a loving father to agree to pay for having his children stolen from him and saying thank you for the dubious honour as is being requested at mediation and court is really pushing it and ultimately the downfall of western civilization.
Malvina Predecki on October 21, 2012 at 12:53 pm
I encourage Mediation as it is a win when parents can agree on what parenting arrangements suit their family, post separation at the early stages of a dispute. Most family law matters settle prior to final hearing and it is partly due to negotiations that family law matters settle successfully. I look at the family as a whole and what is best for that particular family unit and it is great when parents can agree on parenting arrangements themselves without a third party making those decisions for them.
Georgialee Lang BA JD MCIArb on October 21, 2012 at 7:18 pm
Marilyn
I love how you call it as it is! I practice in British Columbia where the government has just introduced family law arbitration. It will be very interesting to see how lawyers and the public react to this new resolution alternative…and yes, the number of in-person litigants is extraordinary and the courts are increasingly more uncomfortable with this trend. Look forward to hearing more from you on these topics. Best regards, Georgialee Lang
Observer on October 22, 2012 at 10:01 am
Mediation is a waste of time and money. Anybody who has tried knows this. It will only work if a shared parenting presumption is brought into place, and if both parents are respected as equals. When there is an imbalance of power between the genders, moms know that no give and take is expected of them. Better for them to just commit perjury by accusing dads of this and that, since the the whole money laundering industry thrives on dishonesty, loves to put children in the middle, and continues to promote the exact opposite of child welfare.
Malvina Predecki LLB BA GDLP on October 22, 2012 at 12:19 pm
I practice in Melbourne, Australia where compulsory Mediation in Family Law matters was introduced in 2006, before initiating any court application regarding parenting matters. Mediation models include both lawyer assisted mediation and non lawyer assisted mediation with the outcome being a parenting plan, a non enforceable flexible document. Parenting plans can be drawn up into consent orders , an enforceable document recognised by the court. The process of mediation has a high success rate and encourages parents to resolve matters themselves.
Observer on October 22, 2012 at 5:47 pm
In the UK, mediation is just another instrument for bullying and exhausting fathers (who invariably start from ground zero, given that they 1) don’t usually have the cunning or indecency to remove their children from mom’s care when the marriage breaks down or 2) don’t want to be accused and jailed for abduction) into submission to the terms of controlling mothers. It needn’t be that way. Take away the power imbalance, and you’ll probably find that more parents behave like adults rather than children. Less litigation too, because the understanding is that there is nothing to gain from it. The whole industry is just a money-making scheme, and mediation is just another ingenious addition to that.
JamesB on October 22, 2012 at 11:26 pm
Have to agree with Observer here. Also think the Aussie model is assumed 50:50. Not that that helps. Not sure it is possible for lawyers to sort divorces and contact tbh. I think not only the family themselves with 1 head, or failing that religious court I think best.
Yvie on October 23, 2012 at 2:04 pm
My son’s attempts at mediation also failed. He went twice but his ex. declined to attend at the same time. She turned up on another day with her boyfriend. No agreement was reached, I suspect because of financial implications (CSA and CB). Mediation was ordered in good faith by the court, but agreement was never on the cards, so £300 down the drain in addition to all the other costs.