Family Law

With this week’s Family Dispute Resolution Week focusing our attention on alternative methods of separation, what needs to change before we see a rise in the number of people using mediation to help deal with their relationship breakdown?

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Alison Bull, partner, and Sue Brookes, senior solicitor, both mediators and collaborative lawyers at national law firm Mills & Reeve

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This article was written in support of Resolution's third  Family Dispute Resolution Week, running from 24–28 November 2014. This awareness-raising week aims to highlight the alternatives to court for separating couples and their families.

Support the campaign on Twitter using  #abetterway #ResolutionWeek and #familylaw

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With this week’s Family Dispute Resolution Week focusing our attention on alternative methods of separation, what needs to change before we see a rise in the number of people using mediation to help deal with their relationship breakdown?

Since April, most divorcing couples are required to confirm that they have considered non-court dispute resolution (DR) at a Mediation Information and Assessment Meeting (MIAM) before they can make an application to the court for a financial remedy or child arrangements order. This change in the law is undoubtedly positive, supporting mediation and collaborative law, which are less expensive and stressful than litigation or highly contentious solicitor-led negotiation.

Mediation enables people to set their own agenda. It is a flexible process that will almost always be quicker and less costly than litigation. It is controlled by the couple, with the help of the mediator, instead of solicitors or the court. Mediation also helps to keep the lines of communication open for separating couples, which can have long-lasting benefits for them and their children.

In light of its advantages, and the recent changes in the law, we would expect a far greater number of people to mediate than actually do. So what’s holding people back?

Recognising the problem

Mediation costs have, until recently, been a problem for people who can’t afford to pay for it privately. However, the government has recently recognised this as a problem and has introduced funding for a single mediation session for couples, providing at least one person is eligible for public funding.

There are two other problems hindering the take-up of mediation: the number of people who do not attend a MIAM, even since April, and situations where a MIAM takes place too late.

Ticking boxes

Family lawyers are often people’s first port of call when considering a divorce, but many do not understand the process of mediation or see the advantages it has to offer.

Solicitors and litigants in person who do not appreciate the advantages of mediation can simply tick one of the exemption boxes on the relevant application form. In practice, the inclusion of a mediation exemption on the grounds that the parties have tried another form of non-court-dispute resolution enables parties to avoid a MIAM if they wish to do so.

Meanwhile, although there is now a requirement for judges to consider DR at every stage, it seems there are still many who do not enforce this consistently. This is often due to the same lack of understanding or even antipathy that is found among some private practitioners.

Solicitors need to be encouraged to claim MIAM exemptions only in the minority of cases where it is clearly unsuitable, and judges need to be robust about managing cases out of court where another preferential option might be available.

Jumping hoops

Even when people do attend a MIAM, they are often already intent on their application to court and not receptive to the potential advantages of mediation or the other dispute resolution options available. If the MIAM is seen as nothing more than a hoop to jump through, rather than a genuine attempt to encourage people to resolve matters out of court, it is not going to have much of a chance to achieve what it could.

It is important to provide information on DR at the outset of any separation. Couples (as well as the solicitors and judges in some cases) need to be educated on the damage that can be caused to a family by contested proceedings. They need to be given enough support to enable them to reach an agreed solution wherever possible.

Videos such as  A better way to divorce – Resolution 2014 can help to illustrate the impact of a litigious divorce on the wider family, but unfortunately such explanations and advice from solicitors are often not enough of a reality check for some couples.

Getting the ball rolling

One of the key problems for mediation is that the process of separation often starts on the wrong footing. People usually see solicitors as the gateway to a divorce and contact them to find out their rights, often adopting a positional rather than interest-based approach before they have even started.

Therapists or mediators are rarely the first port of call for individuals going through family breakdown. Yet such experts can truly inform people on the various options without imposing their own views, enabling them to help people decide the way forward more effectively. They can also better understand whether or not couples are ready for mediation. If they are not, the therapist can help them emotionally to the point where they are ready to progress.

There is a residual concern among some that couples will not want a therapist’s involvement. However, the success of an increasing number of multi-disciplinary practices (or solicitors working closely with therapists) reflects that the active participation of therapists from the outset does work and that it can really benefit clients where it is adopted.

It is easy to say that mediation is not an option, but the question may just be one of timing or of considering how a mediation meeting might be structured to ensure that both parties are protected. However, for some couples, time may be all it takes to avoid the costly and drawn out alternative of court, which usually becomes all the more protracted because they are not ready for it.

Changing perceptions

Greater cooperation between DR professionals is essential to enable better working approaches. A shift in perceptions is needed across the board, from the lawyers who remain the first point of access, to the general public who need to understand the wider impact divorce can have. The benefits of mediation and other forms of DR need to be explained to couples so that they can make an informed decision about how they want to proceed even, before the process has started.

The wider public’s perception of the way to divorce is inevitably shaped by what they read in the papers and see on television. Therefore we also need the media to highlight that there is a peaceful alternative to the pain of a litigious divorce.

Changing perceptions is the first step towards a wider acceptance of mediation, and will help it to be seen as a viable alternative to sort out a divorce, saving many families from unnecessary cost and conflict.