Mediation: is it the way forward? By Solicitor and Mediator Hayley Edwards

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.

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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8 comments

Paul Gilson - November 30, 2012 at 11:37pm

From a few conversations I’ve had with mediation-offering solicitors it appears that solicitors are seeking to charge around £250 per hour plus Vat for mediation. Sessions can last longer than an hour. Will people pay those rates?

Also, what is it about solicitors that their charge out rates are so much higher than comparable professionals such as surveyors or architects? At the equivalent of £2,000 per day, is it any wonder that punters are declining to use solicitors at all? And if a mother claims domestic abuse and gets free legal aid, why, that’s an even greater incentive not to employ a solicitor as it’s almost a given that these types of cases stretch into eternity.

Family mediation would best be implemented in my view by retraining Cafcass as a service that warring couples are obliged to use to sort out post-separation parenting arrangements based on Children Act principles. These arrangements can then either be rubber-stamped or not at court if an order is needed. With the Law Society and the Bar Association taken out the game as far as possible, I sense a lot of disputed cases would die down and much of the angst would disappear altogether.

Marilyn Stowe - December 1, 2012 at 12:09pm

Hi Paul
The mediation fees are split between the parties. That is an immediate saving. I disagree that professional fees differ. My experience with every professional field is that professionals charge roughly similar rates and there are variations in relation to seniority, location etc.
My experience with non professionals is also they too know how to charge (frequently through the roof,) substantially more for example than legal aid lawyers who offer mediation.
Mediation is a good way of resolving issues. Lawyer led mediation is a good idea when both parties want to settle, both are comfortable they know each others finances and both need a steer about what a court might do if the case litigates.
I have never yet had an unsuccessful mediation.
Regards
Marilyn

Paul Gilson - December 3, 2012 at 9:50pm

I understand that mediation fees are divisible by two but that doesn’t help the predictable situation where only one of the parties (i.e. me, dad!) can pay. This is early days yet but I hope a range of good mediation services will evolve to suit a range of differing financial situations. Less money on legal aid must be good for children of squabbling parents but some of that, surely, should be directed into subsidising mediation for those who would qualify for legal aid on financial grounds. I might baulk at paying for my ex- when she is acting up over our children with her over-controlling ways.

As a final thought, I’d say our government is daft if it doesn’t test market an evolved-Cafcass or even the Family Relationship Centre idea from Australia. New family law-related ideas need only go into a small part of the UK and backed financially for two or three years to produce an effective test. Relationship centres could attract sponsors and supporters in their own right and would tie in to whatever the government provides by way of online information services for separated couples. In a few years time we will probably see lots of young couples fighting over children who had never properly lived together at all. These people will require counselling or mediation help and the main thrust of government support should be an enabling approach to keep separated parents away from the courts at all. An online-only service without a tangible, high street referral medium will not work in my view.

Thank you for responding to my post. It is helpful to see experienced professionals engaging in public exchanges.

Marilyn Stowe - December 3, 2012 at 9:54pm

Hi Paul
I think Legal Aid will still be available for mediation.
My concern is that there is law and it is designed to be used by the people. How can it if they are unable to access lawyers and understand their legal position, both men and women?
Regards
Marilyn

Paul Gilson - December 4, 2012 at 12:58pm

Marilyn, solicitors neither own the law nor are they the sole repository of legal knowledge. Legal advice on family matters can be dispensed face-to-face through Family Relationship Centres if the government bothers to set them up, backing up general information made available online. There is also the Citizens Advice Bureau and a number of parent forums online like FNF and Mumsnet. I know Mumsnet’s a bit extreme but they can tidy their act up and it’s good entertainment value.

Marilyn Stowe - December 4, 2012 at 1:25pm

HI Paul
Noted. I cant tell you how many times Ive had to correct the “advice” given by well meaning but non qualified people.
Solicitors train long and hard to do the job they do, and thats what sets them apart. And if it goes wrong, you can sue them.
Regards
Marilyn

Paul Gilson - December 4, 2012 at 7:25pm

I assume you have to deal with the ignorant or unknowing on a frequent if not daily, basis. Your fee ameliorates your unenviable task which in my view extends beyond litigants themselves. Ignorance touches everyone at times.

Apropos the value of good legal advice and its ‘fit’ with mediation, it has to be said that litigants often don’t seek peaceful resolution in the early crucial phases when fires are blazing but mediation could help to calm matters.

Faced with fraudulent allegations, I employed both solicitor and counsel and came to appreciate a contribution for which mediation was no substitute. Without their support, the jointly-instructed expert who played a pivotal role would most likely have not been appointed and I would have struggled accordingly. Regrettably, I couldn’t afford to keep them on. Without mediation as a fallback, the case limped on for a further sixteen months, twenty five in total, with me as a self-represented bull-head, a family law bag lady, one of those you set to rights albeit tempered by a willingness to learn. The case sent me mad, at least until social services came through with some compensation for the damage wrought on my child and me (half my legal costs). The education received propelled me into the ranks of a quasi-Mckenzie who hangs around family law blogs today where I ponder on how cases could resolve more quickly and more fairly without impairing parent-child relationships so much. The expert in my case diagnosed signs of emerging alienation at the tender age of three!

I struggle to see how cases like these can resolve at the outset through mediation when there is a perception by the court, brought on by the agencies, that welfare issues are involved. Social services, the police too for that matter, are notorious meddlers and fence-sitters, passing the buck onto hapless judges. The court really has to exert a very strong influence off the bat, and get Cafcass or an expert right to the heart of any welfare issue. Then, once resolved, a court has to force unwilling parties out for mediation and not allow a respondent to dictate a snail’s pace court process thereafter. Twenty five months worth of hearings is just not on when the Children Act recognises the negative consequences of delay. But can courts make horses drink?

I’d like to see the joined-up thinking that creates a better system overall and how mediation is integrated into the process. Having contributed to both Munro and Norgrove reviews with anecdotal evidence, Munro didn’t bother to write back and Norgrove didn’t focus on the sequential issues that surface to taint cases like mine. We’re even now still arguing over a wretched clause that should long ago have disappeared into statutory guidance.

Friend - December 4, 2012 at 8:38pm

I think it used to be the case that a single allegation made by one party meant that mediation services refused to touch the case.

It would be interesting to know whether this is still the case.

I suspect not, and if not, this would prove the commonly held view that mediation is just another cash-generating stage in the whole extortionate system.

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