Mediation is the current buzzword of family law. We hear about it all the time. Successive Justice Ministers seem to speak of nothing else. Family lawyers are always extolling its virtues, as a quick glance at Twitter will confirm. Mediators promote their services constantly. Despite all of this, the President of the Family Division tells us that we need to do more to inform the public about what mediation is and how it can help them resolve their disputes.
But just how many more cases can be resolved by mediation?
From the 22nd of April anyone wishing to issue a family proceedings application must first attend a mediation information assessment meeting (‘MIAM’). The MIAM is a meeting held for the purpose of enabling information to be provided about mediation generally and about the suitability of mediation for resolving that particular dispute. The idea, of course, is to increase the take-up of mediation, thus reducing the burden on the courts.
The rationale behind all this promotion of mediation is that mediation will be appropriate for far more people than are presently using it, but is this really the case?
It is generally accepted that about 90 per cent of all family disputes are resolved without the need for the court to impose an order. We are therefore talking of just 10 per cent of cases that mediation may ‘prevent’ from going to court.
The question then is: for how many of those cases is mediation suitable? I don’t know the answer to this, but I suspect that most of those 10 per cent are cases that are unsuitable for mediation. After all, if you can’t settle with the ‘threat’ of expensive and stressful court proceedings hanging over your head, what chance of you settling in mediation? Many of those 10 per cent are going to be cases involving domestic violence, cases where one party is likely to ‘bully’ the other and cases where, quite simply, one or both parties don’t want to mediate.
In short, I don’t see that mediation is likely to increase that 90 per cent figure significantly, if at all. If that figure doesn’t go up, then all any increase in mediation is likely to do is replace other methods of settlement, which seems rather pointless.
Of course, there is (at least) one fallacy in the above argument. I haven’t come across a more recent figure, but I strongly suspect that since legal aid was abolished a year ago for most family matters, the 90 per cent figure has dropped significantly. It is somewhat an irony, but very many of those 90 per cent were settled with the help of solicitors. Without legal aid, many more people do not have solicitors. Without solicitors, many fewer cases are likely to be settled.
So, that is where mediation can step in, helping those people who would have settled their cases previously, with the help of legally-aided solicitors – after all, legal aid is still available for mediation. In fact, you would think that this would have already happened over the past year, but it hasn’t. On the contrary, the number of legally-aided mediations has dropped substantially.
I’m not sure that compulsory MIAMs are likely to change that significantly. For one thing, only the person making the application has to attend, and it takes two to mediate.
So, perhaps everyone singing the praises of mediation is what is required after all. Even then, though, there will come a point (if it has not already been reached) when every separating couple will be aware of the possibility and availability of mediation. Will they then choose mediation in sufficient numbers to make up for all of those cases previously settled by legally-aided solicitors?
I very much doubt it. The Government obviously made the calculation that mediation is cheaper than lawyers. However, what they missed is the work done by most family lawyers to persuade their clients to go to the negotiating table (including mediation). Without that ‘helping hand’, how many will choose mediation on their own?
One final point: there sometimes seems to be an assumption that mediation is always successful. Refer a case to mediation, and that is the end of the matter. Except that in many cases it is not. Mediation doesn’t always work. Any consideration of the success of mediation must refer to the number of cases where it resulted in agreement, not just the number of cases referred to mediation.
“It is generally accepted that about 90 per cent of all family disputes are resolved without the need for the court to impose an order. We are therefore talking of just 10 per cent of cases that mediation may ‘prevent’ from going to court.”
How is this 90% figure arrived at? How is it measured? where is the data? who collects the data? What is the definition of a family dispute?
Without a solid, fact based starting point how can you make an argument for or against.
“Many of those 10 per cent are going to be cases involving domestic violence, cases where one party is likely to ‘bully’ the other and cases where, quite simply, one or both parties don’t want to mediate.”
And many of those that don’t want to mediate will use false DV allegations to trump the offer of mediation. A trained mediator would simply not allow bullying so a claim from one party, usually the woman, that she’s in fear of intimidation or bullying should not be allowed to scupper an offer of mediation. Mediation has rules, if the rules are broken the process can be stopped.
A claim of being “in fear of” something should not be given any weight imho. Only “PROVEN” (just emphasis, not shouting, honestly) instances of serious physical violence or threats of serious physical violence should be allowed to scupper mediation; i.e. cases that have met the criminal burden of proof. I don’t include civil cases or criminal cases of talking/communicating without reasonable excuse, the whole point of mediation is to promote communication and discussion between the parties to reach agreement. Non-communication orders shouldn’t restrict mediation, they shouldn’t even exist in family scenarios; totally counter productive with regards to dispute resolution without the use of solicitors and courts.
It also has to be accepted that some people have stronger characters than others, and men generally have a stronger physical stature. Mediation should not be scuppered because one party happens to be bigger than the offer, of stronger character than the other and/or one party defends his moral and perhaps legal position robustly.