A few thoughts about mediation by John Bolch

So, mediation is back in the news. No surprise there, as the Government continues to try and use mediation as a panacea to paper over the gaping cracks left by the abolition of legal aid, gleefully jumping on every opportunity to promote it.

The latest excuse for this publicity drive is the much talked about January surge in divorces. In response to this, the Ministry of Justice has issued a press release reminding us of the provision in the Children and Families Bill that will require anyone who wants to apply for a court order about a children or financial matter to first attend a mediation information and assessment meeting (‘MIAM’). (Please note that, contrary to the headline in one national newspaper, the provision will not require couples to attend a MIAM before they get a divorce.)

Anyway, I don’t propose to go into the detail of the MoJ’s press release here – I’m sure others will do that perfectly adequately – instead, I wanted to say a few words about mediation generally.

So, what exactly is mediation? The first thing to make clear is what it is not: it has nothing to do with marriage guidance or reconciliation, as is commonly believed. It is a process whereby a trained mediator will help the separating couple resolve any dispute. The dispute can relate to arrangements for children or to a financial/property settlement, or both.

Mediation will normally involve several ‘round the table’ meetings between the couple and the mediator. If the parties are able to reach an agreement then the mediator will prepare a document setting out the terms of the agreement, and send copies to the parties. If, on the other hand, the mediator does not believe that there is any possibility of an agreement being reached, then they will bring the mediation to an end.

Note that any agreement reached in mediation is not binding. The parties are entitled to take legal advice upon the terms of the agreement, before it is finalised.

Note also that mediation is not free: the charges vary from one mediator to another. Legal aid is available for mediation, subject to eligibility.

At present, mediation is not compulsory, and as I’ve noted, the provision in the Children and Families Bill referred to above will not make it compulsory to go through a mediation process. All the provision says is that the person must attend a MIAM.

A MIAM is simply a meeting held for the purpose of enabling information to be provided about the mediation of children and financial disputes, the ways in which disputes of those kinds may be resolved outside court, and the suitability of mediation for trying to resolve that particular dispute. Once the person has attended the MIAM, there will be no compulsion upon them to go ahead with mediation.

There are those who think mediation should be compulsory. However, the idea is quite controversial – some think that compelling people into go to mediation is actually likely to make mediation less likely to be successful. After all, you can take a horse to water, but it may not want to have a drink.

In any event, mediation is not for everyone. For example, it will generally not be suitable in cases where there has been a history of domestic violence.

Whatever your views on mediation though, it is certainly set to play a greater role in resolving family disputes.