Why mediation doesn’t always work

From April this year separating couples are forced to consider mediation to resolve any disputes before resorting to the courts and, while this might be a legal requirement, it won’t decrease the number of divorces.

The move,  part of the Government’s cost-cutting shake-up of the divorce system, follows a recommendation from the family justice review report that aimed to reduce the strain on the system as an increasing number of parents become involved in legal wrangles over children and money.

Under the change, those wanting to go to court must now undergo a compulsory mediation awareness session with a qualified mediator before embarking on divorce proceedings.

Justice Minister Jonathan Djanogly says mediation is “a quicker, cheaper and more amicable alternative, particularly where children are concerned”. 

Mediation can certainly be valuable and indeed as trained and experienced mediators we have helped hundreds of clients negotiate their own agreements and avoid resorting to the courts. But there’s a flawed logic in the argument that enforced mediation equals fewer cases in the courts.

Out of the 130,000 divorces annually in the UK, only a small minority of these end up in court. Divorce lawyers worth their salt always have encouraged mediation and, in our experience, the cases that make up this minority are often those that could not be resolved any other way.

Put bluntly, there are cases where mediation simply cannot work. The new requirements acknowledge this to some extent – providing exemptions in circumstances of domestic violence or child protection – and thereby recognising that abused parties can’t be expected to sit around a table and reach a constructive out-of-court result.

There are likewise many other less extreme circumstances where mediation may not be appropriate. For example, when there is a significant power imbalance in the couple’s relationship or where complex legal issues such as the validity of a prenuptial agreement arise. In such cases, forcing mediation may provide more ammunition for what will inevitably be a protracted legal battle.

In our view the imminent removal of legal aid for divorce cases will see more people divorcing without any legal assistance. The loss of legal advice in turn removes access to expert opinion as to whether divorce cases should be settled out of court.

So while imposing mediation may be one way to counterbalance the otherwise inevitable surge in litigation – it will only do so if it proves effective. 

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