These days anyone in the government who says anything about family justice must, of course, ensure that they promote the virtues of mediation. True to form, last Wednesday Family Justice Minister Simon Hughes did just that. He was talking to the Family Mediators Association, so he knew he was on safe ground and that his words would be warmly received.
The words he chose to use, however, are interesting:
“It is not the sign of a civilised family justice system to have more and more people litigating in court whether with lawyers alongside them or not. A civilised system is to have more people resolving disputes away from the often confrontational atmosphere of the courtroom.”
The clear suggestion here is that you are not ‘civilised’ if you take your family dispute to court. I understand that this may not have been the intention, but that is how it feels, and it is not the first time that I have had this feeling when reading what Ministers have to say about mediation. The government, in its eagerness to save costs, appears to be encouraging a culture of vilification of those who go to court to resolve their family disputes.
Very few people, however, choose to go to court to resolve their family disputes. OK, there are a few who demand their ‘day in court’, but they are a very small minority. For most people, going to court to sort out their private family matters is the last thing they want. However, sometimes there is simply no alternative.
In some cases the other party refuses to engage in mediation. In some cases every reasonable effort to resolve the matter by agreement (whether using mediation or otherwise) simply fails. In other cases, mediation is not appropriate, for example due to previous domestic violence. In all of these instances, the parties must have a means of resolving their disputes, and that means is going to court.
There should be no stigma in going to court. It’s bad enough that you should find yourself in that situation at all, without feeling that the powers that be are sneering down at you disdainfully, as if you are some sort of failure.
Even if it does not stigmatise those who go to court, the endless anti-court rhetoric from government Ministers introduces an element of compulsion to mediation: you really should go to mediation, and bad things will happen if you don’t. However, mediation by its very nature is not about compulsion. And those cases in which the parties feel compelled to go against their wishes are almost bound to failure, adding to the expense and time taken to resolve the matter.
There is, of course, a serious fallacy in Mr Hughes’s argument. The obvious implication of what he says is that up until now many cases that could have been resolved by agreement went to court instead. The reality, though, is that with the help of lawyers (preferably on both sides) the vast majority of cases always have been settled out of court – only about ten percent of cases need to be adjudicated upon by a judge. At least until recently. It is only since the Government took away legal aid that “more and more people” are “litigating in court”, and the reason for that is that more have not had lawyers and fewer cases have therefore been settled.
The simple fact of the matter, though, is that most people do try to resolve their family law disputes by agreement. Most of them are successful, but we should not be critical of those who are not, or of those for whom mediation is not appropriate. They have a right to use the courts, and there is nothing uncivilised about that – quite the contrary, in fact.