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.