Is now the right time to force mediation?

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February 23, 2011

Wrong time to force mediation on couples set for divorce

Couples who are planning to divorce are rarely in the mood to undergo mediation at the start of the process.

As legal aid is cut, couples are being told to talk before divorcing, but Marilyn Stowe has serious doubts about how this will operate.

Back in 1996 I was trained as one of the first specialist family law mediators in the UK. At that time we were still emerging from a recession and among the greatest casualties were marriages.

The divorce rate shot up in the mid-Nineties and I’ve no doubt that the government of the time was deeply concerned by the inescapable statistics. Acting on the belief that divorce had to be avoided at all costs, the then Conservative government was introducing a law to try and make it as hard as possible for married couples to divorce. As part of those proposals, mediation was being pushed hard as an alternative to a court judgment.

I decided to train up some of our family lawyers as mediators. Training involved a week of intense hard work; learning how to help a couple in crisis and deal sensibly with their problems without the supervision of a judge.

My firm brought over a specialist mediation trainer from New York because we wanted to be at the forefront of this new field and thought we would become very busy. As it happens mediation generally failed as a widely used alternative to the courts.

It failed for a number of reasons, but mainly because there was no obligation to mediate unless the divorcing couple sought legal aid. And even then, most people who attended a preliminary interview were deemed unsuitable.

Since then I have persevered and had some real successes. I am a believer in mediation and that is why I recently formed a new specialist mediation practice, Stowe Family Law Settlements. I believe that divorce figures, which are at their lowest since 1977, will soon start to rise. During recessions I have found the numbers of divorcing couples drop as the money simply isn’t there to make it possible. But the pressures are still there – particularly for middle-class families who are hard hit by unemployment, tax rises and inflation.

Marriage will once again be a casualty of recession, and I have a feeling that the latest Conservative government knows this only too well. It also knows that it needs to lower the substantial legal aid bill and reduce the pressure on our overcrowded courts. So the latest requirement that from this April all divorcing couples will first have to attend an Assessment for Mediation Interview before making a financial or children related application to the court is part of a strategy that addresses all of these points. But has it been sufficiently thought through?

I have serious doubts. For one there simply aren’t enough mediators to go around. A get-out clause is also provided for couples that can’t arrange appointments with three different mediators close to their home, in a time frame of 15 days. In rural areas there may be no mediators nearby, and in cities and towns mediators may be too pressurised to see all prospective applicants.

But more importantly, to stand any chance of success, the process has to be voluntary. At the start of a divorce one or both members of a couple are usually full of distrust and it just isn’t the right time to begin a “touchy-feely” mediation process. I can certainly foresee a number of couples being instantly dismissive of an approach that can’t compel the disclosure of all financial assets- a common problem in many divorces, remedied only via a court ordered timetable.

So I suspect in financial cases many couples will consider the requirement to attend an assessment meeting as yet another useless and expensive hurdle. They will no doubt try hard to apply one of the get out clauses so that their case can be heard faster in front of an experienced judge. Why further elongate the process and wait even longer for a court hearing?

So what is the remedy? For mediation in financial cases, particularly those involving complex assets, I see the advantage coming further down the line; when emotions are cooling down, financial disclosure has been given, and both parties – not just the wealthier spouse – feel sufficiently empowered to negotiate a consensual settlement. Mediation can then take place faster than overloaded courts and cheaper too.

But then, I’m a lawyer. I want my clients to sort themselves out at the right time, in a dignified, cost effective way. I don’t like handing over control of my clients to a judge and I will always settle a case if I can.

Of course I support mediation. But reducing the strain on our courts and cutting the legal aid bill isn’t part of my remit, nor should it be a burden that divorcing couples have to bear.

Marilyn Stowe is senior partner at Stowe Family Law.