Mediation limitations

Family Law|May 20th 2015

I don’t like to say I told you so, but it seems like the evidence is bearing out what I have said previously about the limits of mediation as a method of resolving family law disputes.

As I have said here previously, mediation is a tool, not a panacea. It is just one of a number of ways in which a family law dispute can be resolved, and it is only appropriate in certain cases. Despite this, the government and others have made overblown claims for mediation, suggesting that it is the answer to all our post-legal aid problems, whereby all of those who used to obtain legal aid to go to court can now sort out their disputes by going to mediation instead. To this end, Mediation Information and Assessment Meetings (MIAMs) were made compulsory in April 2014, in an effort to direct more couples to mediation.

It was obvious to me and to many others from the outset that such claims were at best overly optimistic and at worst downright deceitful. The success rate of mediation was never 100 per cent, even before the advent of the MIAM, so it seemed clear that the rate would be lower still if ‘all and sundry’ were directed towards mediation, rather than just those cases where it seemed likely to be appropriate.

Now there is some concrete evidence which appears to confirm that mediation post-legal aid has not been as successful in resolving disputes as some had hoped. A survey by Resolution, the association of family lawyers, suggests firstly that less than a quarter of cases in which a MIAM had taken place proceeded to mediation, and secondly that of those cases that did proceed to mediation less than a quarter resulted in a settlement.

Those are pretty damning figures. If my maths is correct they mean that less than one sixteenth of cases in which a MIAM had taken place resulted in a mediated settlement. That’s about six per cent. Mediation is not a panacea, it’s barely even a sticking plaster.

Resolution suggest that the success rate for mediation could be increased if the MIAM, or at least the provision of information regarding mediation, were brought forward in the separation process, before the case has reached the court. I’m not sure whether that would make much difference, particularly as there is an argument that mediation is more likely to be appropriate after the parties have ‘calmed down’ following the initial trauma of the separation. However, even if it would make a difference the problem surely is that most parties do not decide to deal with the legal formalities of separation until they are ready to go to court, so quite how information could be provided earlier I don’t know.

As I have said here on more than one occasion, I am not against mediation. However, it really is misleading to suggest that mediation can do more than it can achieve in reality. Mediation certainly cannot replace court proceedings entirely and never will. Further, the figures suggest that it may only have a relatively minor role to play in the settlement of disputes generally. The vast majority of settled cases were always achieved through lawyer-assisted negotiation, and I see no reason why that will not continue to be the case.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Dr. Nigel Miles says:

    Of course mediation cannot be the panacea. It doesn’t earn the income of long drawn out court battles which benefit law companies and a higher Legal Aid bill….for which monies are allowable if CRC is indicated or false allegations of abuse made.

    Well done John you’ve done it again. Brought back our faith in the Children’s Act s of 89 plus, especially when it is used NOT in the best interests of children and all in their families.

    Oh sorry who am l? Like you John a retired professional who has had safe guarding responsibilities for over 10,000 minor children during a thirty year period of working with the education service in England and Wales! And a trained Samaritan counselling both gender parents when corruption of the legislation has been made by LA officers and associated clients with psychotic and abusive tenancies against children and others in all the family!

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