A couple of weeks ago I wrote a post in which I suggested that the government’s pro-mediation drive is encouraging a culture of vilification of those who go to court to resolve their family disputes. Well, that’s not the only adverse effect of the policy. It is also suggesting that there are only two choices when it comes to resolving a family law dispute: either you behave in a civilised fashion and settle the case via mediation, or you go the uncivilised route and battle it out in court, relying upon the judge to impose a solution on you.
To give such an impression, however, would be to seriously mislead the public, making them ignorant of the other options available, and possibly having completely the opposite effect to that intended by the government: fewer cases being settled and therefore more cases going to court. Mediation, in short, is far from the only way to settle a family law dispute.
In fact, my experience whilst I was practising was that very few cases were settled by mediation. OK, mediation wasn’t around when I began my career as a family lawyer, but it certainly was in the later years. During those years I would advise virtually all of my clients of the possibility of mediation as a way of resolving their disputes but very few chose that route, and of those who did, only a small number had what I would call a positive experience.
I would estimate that only about one per cent of my cases were resolved via mediation. Now, it is generally accepted that about 90 per cent of cases are settled without the court having to impose an order upon the parties (or at least that was the case prior to the government abolishing legal aid). So, how were the other 89 per cent of my cases settled?
Well, I would say that perhaps ten per cent of my cases were settled between the parties directly. They would generally be the simpler cases, of course, where the parties would agree a settlement between themselves, usually before consulting lawyers, and one of them would simply come to me for advice on what they had agreed and, if there was no problem, for me to implement the agreement.
What of the other 79 per cent? These cases, the vast majority of my workload, would be settled in negotiations between lawyers acting for each party (unrepresented parties then were far fewer, and anyway it is extremely difficult to successfully negotiate with a litigant in person). This is the big point that the government is conveniently ignoring when trying to direct the hapless public away from courts and towards mediation: lawyers are actually very good at settling cases. Most family lawyers these days adopt a constructive, non-confrontational approach to their cases, on the basis that conflict is contrary to the interests of their clients and is therefore to be avoided if possible. Certainly, when I was practising I took the view that my primary aim was to settle cases by agreement, and if a case had to go to court because no agreement was reached, that seemed like a failure (unless, of course, the other party was being completely unreasonable).
Now, I’m prepared to accept that the above figures are likely to be a little different for other lawyers. After all, approaches differ, and in any event there are now other forms of ‘alternative dispute resolution’ available, such as arbitration and collaborative law. However, the basic fact must remain: for most family lawyers, the vast majority of their cases are resolved by negotiation with the other party’s lawyer.
There is another matter that the government fails to point out: not all mediations are successful. Of course, there is no guarantee that an agreement will be reached in mediation, yet the government suggests that mediation is an end in itself. As I indicated above, my experience was that many mediations did not result in an agreement.
On the other hand, making an application to court does not necessarily mean that the application will proceed all the way to a contested hearing. Most applications are settled before that. Indeed, taking a matter to the court can concentrate the minds of the parties, making settlement more likely.
In summary, mediation is most certainly not the only alternative to asking the court to decide a case, and to suggest so is to do a great disservice to the public, who should be informed of all their options when faced with a family law dispute.
Photo by Valerie Everett via Flickr