Mediation is a tool, not a panacea by John Bolch

Family Law|January 22nd 2014

The way that mediation is sometimes spoken about by its supporters, one could be forgiven for thinking that it is the universal solution for the resolution of all family (or other) disputes.

Mediation has always had its staunch and enthusiastic supporters, even long before the Government seized upon it as the ‘replacement’ for legal aid (which it most certainly is not). However, sometimes a thing can be over-hyped, and on occasions I feel that some of those who are pro-mediation have been guilty of suggesting that it is suitable for resolving all family disputes, when clearly it is not.

Don’t get me wrong – I am not anti-mediation, as some in the pro-mediation camp have mistakenly believed in the past. In fact, I have myself been in favour of mediation for many years. Way back in the nineties, before mediation was de rigueur, I enrolled on a mediation training course for family lawyers, only cancelling when I realised that, at that time at least, the financial rewards from mediation were not sufficient to justify the substantial cost of the training to my firm.

Notwithstanding that, I continued to promote mediation. Right up until I stopped practising in 2009 I informed every one of my clients about the option of mediation as a method of resolving their disputes.

Very few of them chose to take it up. There were many reasons for this. Some people couldn’t face the prospect of sitting across the negotiating table from their exes. Some thought their exes wouldn’t cooperate (for example, both parties must disclose details of their means when mediating a financial settlement), and some just wanted their ‘day in court’.

Of those few that did give mediation a try, many were not satisfied. They felt that it had been a waste of time, simply delaying matters further and adding to the costs. More often than not, they would pull out of the process, rather than see it through to (as they expected) an unsuccessful conclusion.

I was also not always satisfied with the outcome, even when the mediation had apparently been successful. Sometimes I found that financial ‘settlements’ were incomplete, leaving further matters to be negotiated, much to the annoyance of my client. On other occasions, elements of the ‘settlement’ were unworkable or unenforceable. Of course, such problems should not occur when the mediator is a family lawyer, or has the requisite level of legal training.

Despite these experiences, I remain convinced that mediation can be a useful tool, but only in appropriate cases. Obviously, both parties have to be willing to cooperate and there must not be any suggestion of ‘undue influence’ or duress by one party on the other. The mediator must be up to the task and, preferably, both parties should have access to independent legal advice throughout the mediation process. If any of these elements are missing, mediation may not be appropriate.

In short, mediation is just one of the options in the toolbox of dispute resolution, sitting alongside other options including direct negotiation between the parties, negotiation through lawyers, collaborative law, arbitration and court proceedings (which should, of course, always be the last option).

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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