Mediation- yay or nay?

cakeThe Children and Families Bill 2013, which is aimed to be completed this year, has recently been modified. The government has stated that they are introducing major changes which are designed to ensure that future separating parents and couples will first consider using mediation to resolve the issues surrounding divorce and separation; rather than going to court.

The Family Justice Minister, Simon Hughes said that “mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontation and stressful experience of going to court.”

The proposed new law seeks to change the process so that a person who wants to apply for a court order about a children or financial matter must first attend a mediation information and assessment meeting (MIAM).

Mediation is the process of an impartial third person assisting couples considering divorce to make arrangements, communicate better, reduce conflict and reach their own joint decisions.

Mediation, on the whole, is a good step forward.  Mediation encourages couples to attempt to settle their disputes as amicably as possible, outside of the adversarial process.

However, I am going to play devil’s advocate (as that’s what we aspiring lawyers like to do best). Is mediation a miracle solution? I suggest not. Robert Dingwall completed a study where he compared those who had attended mediation and those who had not about how they felt about the process. Those who completed mediation were “quite positive” about their experience. This contrasts with those who used a solicitor who were “more positive” and “attached great value” to having a partisan to help them during negotiations.

Yet, mediation can arguably deal with issues surrounding divorce in the least damaging a way as possible for children. And at the end of the day, when children are involved, it is their best interests that should be taken into account.

One main criticism of mediation was that it was unfair to use in a situation where there had been allegations of domestic violence. However, in the new proposals by the government, exemptions will apply where there is evidence of domestic abuse.

Mediation is also a cheaper option than going to court and so the government believes it should be encouraged. So as the title of this blog says: mediation, yay or nay? Evidently the government thinks “yay.” However, mediation is not for everyone and so it will be interesting to see how the new reforms work in practice.

But before I go, I just want to update you all on a very recent case about a woman who sued her solicitors for failing to advise her that divorce would end her marriage. I must say (reluctantly) that I first came across this news on the daily mail (I know, I know- guilty as charged) and did not think it was in fact actually true. But behold, it is. The case, Mulcahy v Castles Solicitors [2013] EWCA Civ 1686, was about a claim against the firm of solicitors on the basis that the claimant should have been advised to pursue judicial separation proceedings and not divorce proceedings. The claim was rejected.  For further information on the case: http://www.familylawweek.co.uk/site.aspx?i=ed126709. For everybody’s benefit I am just going to clarify that, yes, if a couple do divorce their marriage ends as well.

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