The limits of mediation

Family Law|January 15th 2015

The purveyors and supporters of mediation (who of course include the government among their ranks) are engaged upon a promotional campaign that seems to have no limits. Hardly a day passes without me being accosted by some form of promotional material extolling the virtues of mediation, whether it be via press release, email, Twitter or some other form of social media.

Now, I’m not against mediation, and nor have I ever been. It has its place in the ‘toolbox’ of dispute resolution methods and can work well in many cases. It is therefore quite right that the public are made fully aware of it.

What are not right, however, are the unreasonable claims made or implied by those promoting mediation.

I already commented here last week that much of the promotional material suggests that mediation is the only alternative to court, which it is not. As I pointed out then, it is perfectly possible to settle a matter without going to mediation, as was the case with the vast majority of the matters I dealt with whilst I was practising.

Another dubious claim surfaced this week: that the first stop in the divorce process doesn’t have to be a solicitor – you can go straight to a mediator. Well, that is true, but is it good advice?

Let’s have a think about this. Family mediators all have some legal knowledge, but not all of them are trained lawyers. However, even if they are, it is not their job to advise or, obviously, to take sides. Clearly, they should try to direct the parties towards a reasonable settlement, but shouldn’t those parties have some idea what a reasonable settlement is before they embark upon the mediation process?

The best way for parties entering mediation to know their rights and ‘where they stand’ is for them to take independent legal advice before they begin the mediation process. To suggest otherwise is to risk them agreeing to a mediated settlement that is less favourable than it should be. Divorce or separation is like any other process: the better informed you are, the more likely it is that you will get the best out of that process. To skimp on information about such a complex process seems to me to be highly imprudent.

And it’s not just about advice regarding the issues that are being discussed in mediation. The parties should really have some general legal advice about their situation as a whole, including those issues that are not being discussed and about the procedures they will have to go through.

Now, I know that in these post-legal aid days not everyone can afford to take the advice of a solicitor, but that doesn’t negate my point that such advice is the best course of action. In fact, one wonders whether the claim that you are (at least) as well off going straight to a mediator has been invented to cover up the fact that the government have taken the ability to obtain proper legal advice from a solicitor away from much of the population.

To conclude, I would say this: by all means promote mediation, but please don’t make exaggerated, dubious or unrealistic claims about it. As I said above, mediation is just one method by which some disputes may be resolved; nothing more, nothing less.

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  1. Sylvia says:

    Being impartial didn’t happen in my case.My ex and the mediator had been discussing his mothers links with somewhere the mediator used to work during their one to one(it came out in our joint session)
    I sat there being shouted at by my ex across the table and the mediator was telling him very gently to tell me what he was angry about.
    Whenever I tried to calmly defend his verbal attacks she intervened and told me it wasn’t helping.
    At one point I asked him why he was being so dishonest and she said probably dishonesty on my side too.
    And the issue of his mother collecting on his contact days so that he could go out the night before or spend the day working she tried to push me during the session to allow this to happen even though i have solid reasons for his mother not to look after our daughter for the entire duration of his contact.She tried to bully me infront if him by telling me I was breaching the order.
    It was a complete failure and I came out of that seshion feeling more vulnerable and bullied than I felt before I went in.
    So no I wouldn’t say mediation is always the answer and it shouldn’t be forced unless two parties are prepered to go into it honest and willing to try to come to an agreement amicably.

  2. Sleepyhead says:

    Not having to go to a solicitor first is “dubious” advice, is it? No it isn’t! It’s factual, as stated by the Ministry of Justice.

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