Mediation, and dispute resolution more generally, has hovered on the edges of legal processes for over 25 years. In NFM we started family mediation in 1982 when a group of professionals, including the judiciary, got together driven by a need to find a different way of resolving family disputes, having watched the devastating impact conflict and litigation can and does have on families in the process of divorce or separation.
The civil courts were not exempted from similar experiences and litigants were also left battered and bruised by their experiences, not to mention the cost of it all, both to the service users in legal fees, and the public purse in judicial and court time.
It was 25 years ago that Lord Woolf published the Access to Justice report to reform civil litigation. Lord Woolf's principal objectives were to achieve a cheaper, simpler, more predictable dispute resolution process for all litigants. One of his main aims was to reduce the financial and time costs involved in running commercial litigation.
And it was in 2008 that the National Audit Office published its report “Legal aid and mediation for people involved in family breakdown” and the findings were “too many family breakdown cases are going to court rather than being settled through mediation. Family breakdown cases which are resolved through professional mediation are cheaper and quicker to settle. And academic research shows that they secure better outcomes, particularly for children, as they are less acrimonious.”
So, there you have it! Whether in civil, commercial or family, dispute resolution saves time expense and heartache. It begs the question why has it taken 25 years to get to this point when the evidence is already available.
Whether driven by necessity, as a result of the accelerated crumbling of the family justice system hastened on by the pandemic, or as a result of careful planning and consideration by successive governments who have anticipated the need for modernisation of our approach to relationship breakdown, the outcome is the same. Something needs to change.
This MOJ Dispute Resolution in England and Wales: Call for Evidence is a golden opportunity for family mediation to, once again, showcase its effectiveness and success.
I don’t know anybody who agrees that families by default should be in court about their private family life and yet doing something different seems an almost impossible ask. We can but hope that following this call for evidence, and the likely outcomes it will expose, that it is not another 25 years before the majority of disputes are settled through mediation with better outcomes for all.
Only then will we start to see the cultural sea change of societies attitudes to their relationship breakdown from, right let’s fight, to we had better sort this out!