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Mediation Matters: Modernising divorce means trusting separating families to shape their own futures

Sep 29, 2018, 22:22 PM
Family Law, mediation, divorce, modernisation, families, President of the Family Division, Sir James Munby, Owens v Owens, no fault divorce
This column calls for the modernisation of divorce and refers to the recent speech of Sir James Munby on the evolution of family law
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Date : Apr 20, 2018, 05:31 AM
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The Chief Executive of National Family Mediation returns with a regular column


Not for the first time, the President of the Family Division made waves last month when, in a wide-ranging speech, he argued for the modernisation of a number of areas of family law.

Sir James Munby is due to retire later this year and, typically, didn’t mince his words when speaking to the Edinburgh Law School. Divorce is ‘very badly in need of reform’, he said, drawing renewed attention to the notorious case of Owens v Owens [2017] EWCA Civ 182, [2018] 1 FLR 1002, whose Court of Appeal case he oversaw, repeating his assertion that 'the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty', and that 'the law is badly out-of-date, indeed antediluvian'.
Like Sir James, National Family Mediation has long argued for the modernisation of divorce laws.

Getting a divorce should be far, far simpler than it currently is. It’s much too tangled up in legal processes, acquiring a mystical quality that serves to confuse and defeat those who are, after all, undergoing the biggest crisis of their lives.

Our experience tells us that the huge majority of people going through private law proceedings find it over-complicated and much too time-consuming. It feels like that’s an inbuilt and endemic characteristic of the system.

As family mediators we see time and time again that those who come to mediation quickly realise they are perfectly capable of managing the process themselves. Yet it feels like there is a resistance in our legal system to people having an informed liberty to manage their own affairs, to being trusted to shape their own futures unfettered by jargon and so-called legal expertise.

Our expert mediators play an important role, working with both parents, recognising they play an equal part in future arrangements over parenting, money and property – often helping them successfully move from being warring exes to equal players in a post-divorce ‘business relationship’. But the true power and ability to shape the future lies with the individuals involved, not with professionals sitting outside the process.

Legal processes drain these individuals. Mediation empowers them. That’s why the numbers of separating couples attending family mediation need to be boosted.

Instead, they’re falling fast. New Ministry of Justice/Legal Aid Agency figures this month showed the number of MIAMs in the last quarter of 2017 were down by an eighth on 2016. And mediation starts dropped by 15%. Currently standing at around 1,500, these figures represent the lowest quarterly number of starts since the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

That’s worth reflecting on for a moment, given increasing mediation numbers was supposed to be a strategic priority for the UK government. In a 2014 speech, the then-Family Justice Minister, said 'What we really want to see is more people progressing on to mediation and agreeing their own way forward, resolving disputes away from court', and outlined a number of commitments to promote the process. But it’s gone the other way.

I don’t like the phrase ‘We told you so’, but we warned the Legal Aid Agency and others repeatedly in the run up to the 2014 changes that this would not be effective in increasing take-up.

It would actually not be difficult, or complicated, or expensive to tackle this slump, even with our current outdated divorce laws in place. The powers exist. They need to be enforced, and Ministers should be leading the way, leading the judiciary to maximise the powers they already have. Whatever cases come before the family courts should be adjourned by the judge as part of the contact activity, to meet a mediator who will help the families affected take it from there.

If it was made much easier for people to have their first appointment with a mediator, they would be in a stronger position to then make an informed choice about taking things forward, and take control of their own futures.

If – and when – it finally comes, modernising divorce law will be a multi-faceted task, but honouring Ministers’ long-held commitments to family mediation must play a significant part in the process.
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