27 May 2010

All change?

Last week David Cameron and Nick Clegg announced the coalition's five year programme for government.

Tucked away on page 20 of the document published by the Cabinet Office is a commitment  to "conduct a comprehensive review of family law in order to increase the use of mediation when couples break up, and to look at how best to provide greater access rights to non-resident parents and grandparents."

At first blush, this review appears to be almost identical in terms and scope to that announced by Jack Straw last January. Indeed, both announcements contain a commitment to positively encourage the use of mediation in family proceedings. However, whilst the January announcement contained a commitment to investigate all alternatives to traditional litigation, the coalition appears to be pinning all its hopes on mediation alone being the panacea.

One hopes that this is not the case. No single process, be it litigation, mediation, family therapy, collaborative law or parenting classes, offers the right solution for all separating couples. Rather, separating couples need to have a menu of all the alternatives offered by accredited professionals (whether lawyers, mediators or therapists), what each involves and what each can achieve. Otherwise how can they possibly make an informed decision as to which alternative or alternatives best meets their needs?

If the latest review merely imposes universal mediation then it will be a failure. The experiment with publicly funded cases has demonstrated that, for the majority of clients, mediation has become as a gateway to court rather than a genuine alternative to litigation.  

For this review to be successful, it will have to raise awareness of the benefits offered by solution based alternative dispute resolution and the detriments inherent in litigation. The tricky part will be delivering each alternative at local level.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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