Can we change the mediation paradigm from voluntary to mandatory?

Family Law|July 21st 2014

I have just returned from an enjoyable but hectic visit to the United States. During my stay, I took some time to read up on the family law situation both in the US and north of the border in Canada. It is always intriguing to see such familiar family law touchstones as legal aid and mediation in a completely different context.

In Ontario, for example, the most populous of Canada’s ten provinces, a government organisation is actively pushing to increase the uptake of legal aid in order to “promote access to justice….for low income individuals”. Can you imagine a similar undertaking in the current political climate over here? I cannot – although I wish it were otherwise. Access to justice for those with low incomes is of little apparent concern to the Cameron government. Saving money – no matter the real cost – is what matters.

Meanwhile, at a recent Canadian conference on family law, two legal academics – Jerry McHale and George Thomson – presented the findings of the ‘Family Justice Working Group’, which has been examining potential reforms to the family justice system in the land of the maple leaf. At the conference, the pair outlined a number of proposals, including one for unified family law courts, a process already underway in England. But it was the group’s take on mediation that really caught my eye. The group has proposed ‘mandatory consensual dispute resolution’ – in other words, mandatory mediation.

Under such a scheme, families struggling with difficult issues like divorce and child access would  be required to attend mediation, whether they wished to or not. Personally I fail to see any value in forcing the unwilling into the mediation process and I am not alone it seems. The Working Group’s proposal has attracted scepticism from Canadian lawyers and legal professionals, who feel that not enough thought has been given to the frequent imbalance in power between parties caught up in family disputes – the stereotypical breadwinner vs the ‘homemaker’ (to use a rather American phrase). The latter may only work part time or not at all, and therefore be dependent, to a greater or less extent, on their spouse’s earnings. The danger is, of course, that without appropriate safeguards, the homemaker could be pressured into agreements that are not really in their best interests.

Some spouses may exert some degree of control over their partners in other ways too – violence, for example, or simply a domineering personality. Face to face mediation in such circumstances could do more harm than good. Yes, the Working Group has proposed an exemption for domestic violence cases, but such an exemption would, in reality, force participants to accuse their partner or ex-partner of a crime for which they have not been convicted (or else there would be no possibility of mediation in the first place). The potential consequences are clear.

Mediation and other forms of alternative dispute resolution (ADR) are, by their very nature a personal process, governed by the relationships between the individuals concerned. They cannot be divorced from that fundamental fact.

Here at home, the current government has been enthusiastically pushing mediation for several years now and they have been doing so for one very simple reason –mediation is a cheaper alternative to the overstretched family law courts. At least, they think it is. But for all its enthusiasm, the Cameron government does at least appear to have recognised that mediation must be voluntary. Unhappy couples intent on legal action are now required attend a MIAM but there is no obligation to participate in mediation itself. That remains the mediation paradigm over for now and I hope that will not change any time soon. Yes, here at Stowe Family Law LLP, we offer both mediation and ADR to clients, but we recognise that they can only be serve a function and be effective when used appropriately.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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Comments(4)

  1. Hitolamiavie says:

    Agree but it is important to note that there are also power imbalances in that a so-called homemaker may use the children as tools and deprive by delay and obfuscation or ultimately dissuade a so-called breadwinner from continuing to battler to see the children.

    The losers are the children when delay and cost are put into the mix due to mediation being compulsory but with no real prospect of success in reaching an agreement or holding to it.

    Mediation can be helpful but very often it just leads to delay and more cost for all involved.

    Many cases need the determination of a judge.

  2. Luke says:

    People often go to mediation even though they don’t want to confront/be bullied by the other party in order to not lose Brownie points with the court – i.e. to show willing and say that they have tried.
    I’ve seen it in that situation and it doesn’t work at all. After a very long wait for the mediation appointment the whole thing on the day derailed pretty quickly – the mediators declared:
    “This is absolutely hopeless let’s forget it !”.
    .
    Both parties have to be willing and there has to be an underlying basic meeting of minds for mediation to have any chance of success – otherwise all it does is make an already tortuously slow and cumbersome divorce process that we currently have even slower.

    .

  3. Larry Marin says:

    Here in Ontario mediators must screen for power imbalances and will end mediation if real or perceived imbalances cannot be dealt with in the mediation process. Also, mandatory mediation only means people must try it, not that they have to continue if they are uncomfortable. If someone decides to stop mediation they are protected by the confidentiality of the mediation process from being identified as responsible for ending mediation. Finally, since 2012 when free mediation is available in all family courts and subsidized mediation available at specific offsite locations, mediation is easy to get and usually works quickly. In many case people are seen the same day and go back into court with a resolution in a couple of hours, while offsite mediation almost always happens within a week of asking for an appointment, All things considered, the idea of having to try mediation before going to court has a lot of merit. It is already the norm in many areas of civil litigation.

  4. Luke says:

    ” In many case people are seen the same day and go back into court with a resolution in a couple of hours, while offsite mediation almost always happens within a week of asking for an appointment”
    =======================================================================

    Maybe that happens in Canada, but it doesn’t happen here, everything takes forever. My relative got divorced and it took the best part of TWO YEARS – and they are STILL being dragged back to court with lawyers and barristers for disagreements and psychiatric assessments and being forced to pay half of all the costs because ‘they will benefit’…

    It’s a money making business here and everything is dragged out, all the professions within the business are looking for their cut.

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