Mediation: is it the way forward? By Solicitor and Mediator Hayley Edwards
November 29, 2012 8 comments
Just over a year ago, the final report of the Family Justice Review was published. The report had been commissioned by the Government in response to concerns that the family justice system was not working. There was a huge backlog of cases concerning children and more and more divorcing couples were issuing court proceedings rather than trying to resolve their marital difficulties directly.
The review made many recommendations but principle amongst them was the proposal that anyone before making a court application should be required to attend a Mediation Information and Assessment Meeting (“MIAM”). The MIAM system is currently up and running but it is yet to be made compulsory. Potential applicants are advised that these information meetings are available but there is no obligation to use them. The Family Justice Review therefore recommended that every party should attend an initial assessment and be provided with information regarding mediation. The mediator would be the key legal professional involved up and until an application is made to court.
If the Government decided to legislate in this area, would the MIAM approach be good news for separating and divorcing couples? In April 2013, most public funding (formerly Legal Aid) for private family law cases will come to an end (one prominent exception being domestic violence), so there certainly appears to be a need for a cheaper and more hands-on approach – something for those people who cannot afford legal representation but wish to resolve marital and financial affairs directly with their former spouse. It would also be welcome news for family judges who now face the very real possibility from April next year of a court system clogged with litigants in person who believe they have nowhere else to go.
The recommendations in the Family Justice Review were designed to minimise the number of applications going to the courts and also increase the number of people using mediation to resolve arguments.
Currently, under the Family Proceedings Rules 2010, the courts are required to actively manage cases and encourage people to use ‘alternative dispute resolution’ whenever appropriate. In practice, however, this rarely happens. Perhaps the courts could be more active here?
A comparison can be made to the civil system where in 1999 the Civil Procedure Rules came into place following the introduction of Lord Woolf’s reforms. The system in civil disputes was overhauled and the courts were given extensive powers to direct people to undertake alternative dispute resolution both before and during the court process. Powers were given to the court to penalise parties who did not comply and as a result there has been an overall decrease in cases issued and an increase in the number of parties using mediation.
If the Government does adopt the recommendations in the review, divorcing couples will receive information regarding mediation and therefore their choices will be widened. Here at Stowe Family Law we have a dedicated mediation department, in all our offices, consisting of a number of highly qualified and experienced family lawyers who deal with both children and financial disputes. The process is simple and begins with the MIAM. Full information and advice is given as to whether mediation is the right approach for the individual.
If the parties decide on mediation, there will be a number of sessions with either one or two mediators so that the parties can work through their issues. There is a fee for each session and the costs are shared equally between the parties. If the mediating couple are able to reach an agreement that they are both happy with, each will then consult independent solicitors who will provide legal advice on the proposed agreement. If the parties still wish to go ahead, a legal order will be prepared recording that agreement and this will be sanctioned by the court. The whole process is much cheaper than the usual lawyer-led system and often less traumatic.
Whatever the government decide to do with the recommendations in the review, it must always be remembered that family law is very different to any other type of law in one key respect: the parties are often very influenced by their emotions and can often barely face one another, let alone enter into discussions. So while it is no bad thing that individuals are provided with information regarding mediation, they should not be forced into it and people should not be penalised for deciding that mediation is not for them.
However we have found that whilst mediation is avoided at the outset when parties are usually too raw and financial disclosure has not been given, as the case progresses there are opportunities where mediation could be given a go – for example, shortly after the First Appointment when all the court-ordered documentation is complete. Mediation might avoid the necessity for the Finance Dispute Resolution Hearing, which many couples say takes place over their heads because don’t have the necessary understanding of what is going on to come to a final decision. A more leisurely conducted mediation might be just the trick.
Photo by Wonderlane under a Creative Commons licence
Hayley Edwards is one of Stowe Family Law’s team leaders and deals with mid-level assets cases. Hayley has been commended by the firm’s clients for her scrupulous attention to detail.
Hayley Edwards joined Stowe Family Law in September 2004. She obtained her law degree at the University of Hull in 1990, attended York Law School in 1991 and qualified in 1994, specialising in all aspects of family law.
In 2002, Hayley Edwards became an Advanced Member of the Law Society’s Family Law Panel.