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Mandatory mediation: A help or a hassle?

Image © REX/Cultura

About The Author

Georgia Mitchell (Writer)

Georgia is in her second year of Law at Newcastle University. She is currently pursuing a career as a commercial solicitor, and hopes to work abroad within the EU at some point in her future career. Outside of her studies, Georgia is an avid tennis fan.

New figures show that 124,420 couples filed for divorce in 2012 but instead of potentially long and costly court hearings couples opted for mediation, which has proven to be a much quicker and cheaper alternative and hence often provides better outcomes. In 2012, 67% of all couples resolved their concerns out of court with a qualified mediator.

Couples wishing to separate or divorce will soon be accommodated by a new mediation service at first instance. This compulsory condition is enclosed within the Children and Families Act 2013 and is meant to come into force in April of this year.

Mediation practitioners have actually reported a sharp fall in the number of couples using their services after government cuts to legal aid for family disputes. Now though, the introduction of a mandatory referral to mediation is expected to noticeably increase demand. Under the new powers, anyone divorcing or separating who wants to apply for a court order about a child or financial matter must first attend a mediation information and assessment meeting.

This considered, what exactly is mediation?

It requires an independent third party, a mediator, to operate as a neutral body in an initial attempt to aid both parties in reaching a satisfactory joint agreement without necessarily having to enter into the court process; a more confrontational and cost-prohibitive exercise. Successful mediators effectively develop communications between the parties which can ultimately realise a reasonable consensus and mutually acceptable outcome for all concerned.

Previously, UK courts have been opposed to the idea of mandatory mediation as seen in the case of Halsey v Milton Keynes General NHS Trust [2004] where it was held that no party can be forced to mediate. 

Mediation has always been encouraged within UK courts; the Woolf Reforms of 1999 gave judges the power “to encourage” the use of mediation at every stage of litigation. Further from this, Sir Rupert Jackson’s Final Report on Civil Litigation Costs in England and Wales (2009) recommended that courts should encourage mediation and highlight its benefits, direct the parties to meet and discuss mediation, require an explanation from the party which declines to mediate, and penalise in costs parties who “unreasonably refuse” to mediate. It is evident that mediation has become more and more common over time and, therefore, it could be argued that making the process compulsory is inevitable. It has been questioned that if mediation can “cure the system”, why is it still voluntary?

Why is mediation popular?

Mediation information sessions are becoming compulsory for a number of reasons; the primary one being to protect the welfare of children involved. When a broken relationship necessitates a separation or divorce, achieving the least emotionally damaging route towards a resolution is paramount for both adults and children. Embarking on a dispute in court can prove to have an extremely negative impact on children's self-esteem and general sense of well-being due to its stressful and intense nature. If a couple wants to arrange custody over their children during a separation, mediation is undeniably the better alternative in comparison to going to court. It is a collaborative process with the common goal in mind to act in a child’s best interests. Through this process, couples will be able to establish a parenting plan that enables both parents to be actively involved in a child's lives. The department for Education states that “the bill will implement commitments the government made in response to the Family Justice Review including by introducing a time limit of 26 weeks when courts are considering whether a child should be taken into care and making sure more families have the opportunity to try mediation before applying to court.”

Furthermore, mediation is far less costly than court proceedings, which only strengthens the government’s position on the practice. The Ministry of Justice confirms that the average legal aid cost of resolving a private family dispute following a relationship breakdown is approximately £500 per couple where mediation is invoked. This compares with £4,000 per person for issues settled through the courts. The average length of a mediated case is 110 days. By contrast, the anticipated duration of non-mediated disputes stands at 435 days.

However, are these programs really helping to reduce conflict and hassle, or are they harming parties by restricting access to traditional court litigation? 

The costs to those who do not reach a settlement, or who feel that their access to a traditional judicial process has been taken away through this compulsory requirement, still need to be explored and evaluated. By being forced to attend mediation information sessions, and being penalised on costs for unreasonably not attempting mediation, couples may feel their hand is being forced. Mandatory mediation as opposed to traditional voluntary mediation raises additional ethical concerns including freedom of choice, privacy and confidentiality, and enforceability of any attained agreements. 

Do the benefits of mandatory mediation outweigh the costs?

Parties who participate in mediation are often led to believe the process is completely confidential and concerns only those involved. Usually this is the case. However, as mediation becomes more institutionalised and under government control, many people are concerned with confidentiality and who exactly is permitted to oversee cases. It is argued that new rules and protections for the parties should be established now that there is little choice on whether an attempt is made to settle outside court. Parties, along with the mediator, may now be subject to provisions of law that may overrule a signed confidentiality agreement that all participants had previously agreed to in mediation, exposing any perceived privacy to court rules. Although the government aims to protect the integrity of the mediation process by setting confidentiality rules, opponents still question the enforceability of the confidentiality clauses. For instance, when one party might use information obtained in mediation to further the current conflict through litigation, instigate new litigation, or place the mediator in a forced position to compromise confidentiality through court orders to disclose information. Furthermore, if courts need any information which has been disclosed within the mediation process, they have the power to access that information, despite the supposed confidentiality of the entire process.

Furthermore, even though cost appears to be a prevalent argument in favour of mediation, it must be considered that not all disputes are going to be settled immediately. Mediation costs money; albeit far less than court proceedings. Therefore, if a couple simply cannot reach an agreement, costs can amalgamate leading to great expense and this should be highlighted more when informing couples about the procedure. Additionally, if mediation fails, it is simply a further expense. If mediation was always likely to fail due to a complete breakdown in relationship, this begs the question: was there any point in the first place? Some relationships between spouses are beyond repair, and therefore necessitate action from a court to settle disputes on their behalves.

Overall, despite mediation having many benefits, the disadvantages should also be made clear. With 67% of couples selecting mediation in previous years, the necessity for the compulsory information meetings could be questioned. The primary concern of many is that the government is depriving society of the freedom to choose. If it is their money and their children concerned, should it not be their choice whether or not to attempt mediation?

Further reading:

Gov.uk, New mediation laws to help separating couples

Global Mediation, Justice Minister supports government plans for mandatory mediation

Judiciary.gov, Review of Civil Litigation Costs: Final Report

John Hyde, The Law Gazette, If mediation can cure the system, why is it still voluntary?

Department for Education, Children and Families Bill 2013

Gov.uk, Children and Families Bill 2013

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Tagged: Family Law

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