Divorce and Compulsory Mediation – The Answer?

03/09/2012

There has been endless comment, both in the Legal Press and the National Press and from a number of senior legal figures that plans should be made for divorcing parents to be kept out of courts.  Indeed some went as far as to say that compulsory mediation should be brought in as a measure to reduce warring couples, in an event to shift the focus to the welfare of the children who routinely get caught up in bitter disputes between their parents.

 

When the new Family Proceedings Rules were brought in, from April 2011 Judges were given much wider case management powers, which included directing parties to attend Mediation and halting the contested proceedings that had been commenced, to see if they could be disposed of altogether.

 

How, if at all, has this changed the divorce landscape?  Well in short, not really very much.

 

By its very nature, the breakdown of a marriage whether short or long is an emotional rollercoaster, and when you throw in the upheaval of moving house, you have two of the top three most stressful times in a person’s life.  The primary contributing factor to drawn out and protracted matrimonial cases, is fundamentally emotion.  This extremely provocative facet of human nature has the ability to cloud even the most intelligent person’s ability to rationalise, think with clarity, and view with common sense.

 

Although each and every such proposal to try and remove inflammation from divorce suits should be welcomed, as indeed is any form of alternative dispute resolution which attempts to focus parties’ minds on the salient issues, whether this will be ever be a true success is a matter of much conjecture.

 

All solicitors who work within the field of Family Law have to wear a variety of hats when advising clients.  We have to be first and foremost legal advisors, but we also must be mediators; negotiators of settlements (whether children or finance related); litigators when the negotiating fails; as well as psychologists and therapists to help our clients through the emotional strain any relationship breakdown inevitably brings.  Parties run the entire gambit of emotions during divorce proceedings which are not simply restricted to those prevalent as a result of the reasons why that relationship has broken down.

 

As solicitors we all strive to maintain amicable negotiations with our fellow professionals, but frequently that is not possible due to the complex character dynamics displayed by our clients in dealing with various situations which most will have never dealt with before.

 

 

As members of Resolution and indeed the Law Society Family Law Accreditation Scheme, the matrimonial team at Hine Solicitors encourage best practice within the field.  We all strive to help our clients through the travails of divorce with the minimum legal input, trying to secure the most amicable result possible – which is even more important when children are involved.  We will always explore with all clients every aspect of alternative dispute resolution, such as Mediation or a Collaborative approach.

 

Presently however, Mediation is not a suitable arena for a number of clients, most notably those where there is a perceived imbalance in the parties’ respective bargaining positions; where one party feels that they may be subservient to the other; or in cases of potential (or actual) domestic abuse.  Forcing these parties into Compulsory Mediation as is being suggested, cannot ever be the right solution.

 

Where children are involved Mediation should always be the first avenue for dispute resolution, but again the difficulty arises in the perception of what the other party may be trying to achieve in terms of financial gain:- such as a increase in child maintenance through CMEC (what used to be the Child Support Agency), or as a bargaining tool when the parties’ matrimonial pot is to be distributed.  Here again, frequently emotions prevent the ability for clear and rational thought, and make informed discussions even more difficult.

 

Proposals to streamline still further the court process must also be welcomed, but again a note of caution is needed here.  Courts can only become more efficient with more funding from the government, and sadly we are in a position where present funding continues to be cut, rather than increased. 

 

Mediation is now, or should be, actively encouraged by all competent practitioners during the initial advice meeting with a client, and this is certainly something that Hine Solicitor’s specialist team advocate and practice. 

 

However, the parties will still require legal advice to discuss the terms and indeed ramification of any settlement reached, as most mediators do not have legal qualifications.  The old adage ‘you can bring a horse to water, but you cannot make it drink’ is particularly apt as most clients simply do not want to partake in mediation and wish to proceed as quickly as possible through the court process to a conclusion. 

 

It is also worth noting that Mediation has its own financial cost attached, and if the Mediation breaks down, the parties then find themselves faced with the court process, and may even be more entrenched in their positions as a result of the failure of mediation, which can make it more difficult for their legal advisors to move them away from those adopted positions, making court hearings and the costs associated, inevitable.

 

 

In conclusion therefore, attempts to force parties to Mediate should be viewed as cautiously welcome but with a caveat.  Each marriage and divorce is different, and always will be.  What suits one party, will not suit another and each party should be given the opportunity to consider their own position with a legal representative and reach an informed decision as to how they personally wish to proceed, rather than being forced into a system which may not ultimately fit and which could possibly make matters worse, rather than better.

 

Hine Solicitors specialist team of matrimonial solicitors have significant experience in advising clients with regard to relationship breakdown and asset distribution for high net worth individuals.  Specialist advice should always be sought upon a relationship breakdown to ensure that your position is fully explored and covered. 

 

Ian Davies

Senior Solicitor,

Hine Solicitors

OxfordSummertown

01865 514348

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