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If mediation's the answer to everything, what's the question?

Date:19 NOV 2015
This article was written in support of Resolution's fourth Family Dispute Resolution Week, running from 23-27 November 2015.

This awareness-raising week aims to highlight the alternatives to court for separating couples and their families. Support the campaign on Twitter using #childrenfirst, #ResolutionWeek and #familylaw.

The Ministry of Justice still hasn't announced the deal it's reached with the Treasury to cut its budget ahead of the autumn statements. But the pressure's on. We're closing courts, losing judges, and we've done away with state financed access to justice. We're in the last chance saloon so far as maintaining anything approaching a credible system of civil justice is concerned. So, time to march as many people as possible away from the centre of operations in the hope that they'll be able to mediate their way out of their problems.

Family mediation has been at the front line of cost-saving strategies for the Family Court for years. Governments can't do enough to promote it. When I trained as a mediator in 1997, it was to be in the vanguard of what was then going to be a wave of mediators taking advantage of the provision in the 1996 Family Law Act imposing compulsory mediation on divorcing couples. It was never enacted.

So we trained, which was lovely, but then nothing much happened for most of us for years and years.

Now the government is seeking to 'embed mediation as a key element in the family justice system' as the Family Mediation Council tells us. But this has highlighted the old divisions between lawyer mediators and the rest.

When I turned up for my training all those years ago, I was amused, if surprised, to learn that a schism had developed between the various mediation bodies. I'm still not sure what the key components were, but mediators not being able to agree with each other was wonderfully comedic. Things have improved since then but there remains some residual tension.

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Most mediators don't come from a legal background. One of the central tenets of mediation is the skill of enabling couples to come to their own decisions, not give them legal advice and act as quasi arbitrators. So the argument goes that you don't need to be a lawyer to do that and someone who's practised as a counsellor, for example, with an hourly rate of, say, £60 can do the job just as well as for a fraction of the cost. And mediation needs to be cheap if it's to attract people who can't afford lawyers.

I think this tension has played out to some extent in the fact that Resolution and the Law Society have been sidelined in the Family Mediation Standards Board which has been given the Government's blessing to supervise training and accreditation under the umbrella organisation of the Family Mediation Council. Time is running out for those of us lawyers wanting to be accredited by their peers.

I've got until the end of December to have become accredited under the old Law Society scheme, or I can no longer conduct MIAMs. Although I have undertaken sufficient mediations to submit my portfolio, I'm nervous about doing so. There will be a separate Law Society scheme for the next two years, but the rules are slightly different and more onerous, and the current scheme is onerous enough as it is. It's all very time-consuming, and I don't want to fail.

The Chairman of the newly created Family Mediation Standards Board has a background with the NHS and the civil service, and was once Virginia Bottomley's principle private secretary (see 'NHS jobs for boys row', as the Independent put it on 23 October 2011). Is he going to understand our dilemma? I suspect not.

I also think it sends out the wrong message if lawyers are not to play a prominent part in family mediation. This is intended to be equal to a court-based system and I fear family mediation will lack the credibility it deserves without lawyers' involvement.

At heart, this is about families separating on the cheap. Mediation is a wonderful voluntary option for many families, and I couldn't be more supportive. But it's not a viable alternative for all those embroiled though their family situations in complex legal issues. The State has chosen to exercise legal controls over how couples are to separate their finances and provide ongoing financial support, sometimes for the rest of their lives. Sanctions for breaching these obligations can include going to prison. And the State also gets involved, rightly, with children's issues that have profound consequences for all concerned. So the State can't simply abdicate responsibility to provide information and skilled legal advice - especially to the weaker party - by hiding behind the mantra that mediation is the answer to everything.