The new Family Proceedings Rules will impose a mediation assessment upon nearly all divorcing couples in finance or children disputes from April 6th 2011.
90% of all such cases settle by agreement already, whether they involve mediation, solicitors and/or court proceedings.
So why has the government put the time and effort in to drafting these new rules?
Because it will save money. Not for the couples necessarily – but for the government itself. Hand in hand with this new regime goes the dramatic reduction in Legal Aid for all divorce or family cases. There has also been a huge increase in the number of people representing themselves (called “litigants in person”) in the courts, wasting huge amounts of Judges time demanding impossible orders on the basis of irrelevant evidence. The government wants to cut the Legal Aid budget by 75% and make the courts self financing. Mediation is seen as one way to achieve this.
BBC News Report
Will mediation replace solicitors in divorce proceedings?
But is this going to be successful for the clients?
Solicitors (who already send suitable cases to mediation on a regular basis) agree that it can be excellent for those couples who can be reasonable, cooperative and civilised. But where there are serious problems, advice from a solicitor is essential so that the client becomes aware of their rights and remedies in court. Otherwise we can foresee huge prejudice to some clients, for example :-
In domestic violence cases
Cases where one party assaults or threatens another are exempt from the mediation assessment, but of course the victim has to find the courage to make the allegation in the first place. Separate interviews with a mediator can be requested, but you can imagine that a bullying spouse would use threats or worse to force a joint meeting so that domestic violence never comes to light in the first place.
Or difficult finances
This might mean complex business issues, offshore investments, inherited wealth or even serious debt. Many mediators have little financial or business experience particularly if they come from a social work background. It is unlikely they can equalise the power imbalance between one spouse who knows and understands these issues and the other who has not even the language to ask the right questions. Such cases are not exempt from the mediation assessment meetings.
And it is not true that cases brought before the divorce court end up in a trial. Most hearings are about disclosure of finances, where one party is trying to deceive the other, or disputed valuations, medical conditions and there implications to needs, or the assessment of children’s wishes or their best interests. In other words they are a structured, disciplined format to discover the facts and figures in preparation for a possible trial – which usually never happens.
Most cases settle in or out of court when facts become clear and parties are warned of likely results and the costs of the trial. This is essential to bring uncooperative, bullying, or deceitful spouses to acknowledge the reasonableness of the claims of their ex which they would refuse without the intervention and authority of the court.
We deal with nothing but complex or intransigent cases. Our clients would be hugely disadvantaged if they were forced to go to mediation, because the other side would not be open, honest and cooperative.
On the other hand we send many who approach us for advice to mediation, because that is the right course for them.
John Sturrock QC on why mediation works and why he prefers it to fighting court cases as an advocate. Listen >
So it is important to understand that the choice is not between a mediated agreement, or a fight to the death in court represented by litigious lawyers. There is a middle ground where specialist family lawyers achieve fair and equitable settlements in 90% of cases, without trial, while incurring fees which are proportionate to each individual circumstance !
And finally – did we mention that by April 6th 2011 Mike Gordon will be a qualified family mediator?
He will be writing next month’s article.