Promotion of mediation as a cure-all for family law is misguided. It can never replace the law and the court.
It is easy to see why, as far as the Ministry of Justice is concerned, mediation is a gift. By promoting mediation as the catch-all and cure-all for family law, costs can be slashed for everyone. Legal aid can be kept for mediation, but cut elsewhere. The pressure on overburdened courts can be reduced. And of course, warring couples can sit down and reach amicable agreements. Everybody wins, so let’s push couples towards mediation.
The figures, however, tell a different story. This month it was revealed that the number of family mediations funded by legal aid has plunged by 45%, year on year. Attendance at mediation information and assessment meetings fell by 57% over the same period.
What is going wrong? I trained as one of the UK’s first lawyer-mediators. Although I manage a successful family law firm, I also manage a partner practice, which specialises in lawyer-led mediation for divorcing couples. I have learned that mediation can work brilliantly as a form of dispute resolution, but it is not a cure-all. It is suited to a relatively narrow selection of family law cases.
Mediation is most likely to work if it takes place at the right time, and if the mediator is also an experienced family lawyer. This is not a particularly popular view. There are those who argue that for a mediator, a sound knowledge of the law is not a pre-requisite. I strongly disagree. Mediation can work extremely well when the parties are willing to talk, all the assets are disclosed and both parties have a reasonable idea of future financial requirements. For these reasons, successful mediation requires legal expertise in addition to ‘softer’ people skills.
In reality it is rare for a couple to reach a mutually amicable decision to split. So, as much as the government’s promotion of mediation looks logical, its enthusiasm is misguided. What the theorising about the all-round excellence of mediation as a form of dispute resolution fails to take into account is the emotional fallout of the situation. In most cases, by the time a client is sitting in front of me, they are almost beyond having reasonable discussions with their partner. They just want someone to be on their side, look after their interests, and get the whole thing over and done with.
Mediation is not suitable for mass consumption because it has to be consensual if it is going to succeed. If your partner has left you, been unfaithful or is trying to prevent you from seeing your children, are you likely to be able to converse with them coolly and calmly? In most cases the answer is no. When people are angry, distraught or in shock, how can they reasonably be expected to make informed and pivotal decisions about asset division, child contact arrangements and the future?
This is where lawyers come in. This appears to be an unpalatable truth to justice ministers, but lawyers play an invaluable and indispensable role in our justice system. We ensure the law is invoked and applied correctly and fairly. We provide a vital buffer between the judge and the client. Remove the lawyers, and chaos ensues – something we have already seen over this past year. Litigants in person, through no fault of their own, have caused chaos in courts around the country. Some are ignorant of the process and the law; others are too frightened or emotional to settle outside court. The effects have been particularly noticeable in family law, where emotions run high.
So what next? More of the same it seems as the government allocates additional funds ‘to raise the profile of mediation’. How many years will this PR exercise take? I have been a mediator for 20 years – mediation did not take hold before and it is not taking hold now. Even the preservation of legal aid for mediation is not having the required effect. No amount of gimmicky apps or websites offering basic guidance can ever replace the law and the courts.
How long will it take for the ministers and their bean counters to accept that sound legal expertise is what the public wants and needs?
Mediation has its place, but if it is to be the ‘magic pill’ for those who cannot afford lawyers, then ministers are mountebanks.