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To Mediate or not to Mediate? – that is the question

Mediation has again been in the news as we await the Government’s proposals due in April on access to mediation in divorce and children cases. Mediation has been around for a long time and has over the years been heralded as the panacea to resolving issues in divorce cases. The break down of a marriage and relationship is a very complex process and its management by those involved and the professionals who get on board creates a set of challenges very different to those found in a commercial dispute.

Couples invest their hopes and aspirations in a marriage and when it does not work they enter a world totally alien to them. I recall one client telling me when her husband told her he was leaving after a very long marriage ‘I feel as though my world has ended’. It did not help in that particular case that the husband in question told his wife of his intentions by email – the coward’s way out one could argue, in a pre-internet age he would probably have left her a post-it note. I believe it is essential to get the timing right if couples are to go to mediation. When the separation is still very raw it is highly unlikely that the couple will want to sit in the same room with each other and a stranger to pick over the remnants of their marriage and discuss who is to keep the 3 piece suite. I had one lady who had gone to mediation shortly after the parties had split. The husband again in that case had met someone else and had been planning his departure for some time. She said to me ‘ I was sitting in this place listening to him bang on about how it was time for me to move on, he was moving on with his life and all I could think about was picking up the nearest object I could find and smashing it over his head’. The management of the emotional fallout from a divorce is crucial. It is essential that when parties do mediate they are on a level playing field. There is certainly a case for couples trying to agree at  an early stage before solicitor’s letters start flying in both directions and views become entrenched. A war of attrition should be avoided at all costs.

It is an essential element of mediation that both parties have solicitors on the side lines advising them on the law and the merits of any proposals. It is also essential in financial issues that both parties have understood and complied with full and frank financial disclosure which means not being selective in what is disclosed.

It is a common misconception that couples run off to Court at the first opportunity. My clients are always advised that Court is the last option. It is the case in children cases that mediation/conciliation is available at court on the first appointment. The parties are encouraged at every stage of the process to sort matters out. It is quite common in children proceedings for the parties not to be arguing over with whom the children should live or the principle of contact but whether they should be picked up at 4.00pm or 5.00pm on a contact weekend. These kinds of disputes are soon knocked on the head by a robust judge and should never have found themselves at the court door. Issues such as these are about point scoring and nothing to do with the welfare of the child which lies at the heart of the Children Act. A high proportion of children cases settle at the first court appointment. There are however those few cases that will never settle by agreement. They are the cases that mediation would not solve in a million years. They are the cases that require the full force of the law to be borne down on the parties. They are in fact the cases that most solicitors dread as there is often no rhyme or reason to the ongoing hostilities.

You do not need to have a great intellect to know that in cases where the parties do agree the likelihood is that agreement will stand the test of time and there will not be repeat trips back to the solicitor or Court because it has broken down. The Government’s proposals are that parties must attend a mediation assessment appointment. If they decide it is not for them that will be the end of it and if they have the means they can continue to litigate. I suspect however if they do end up in Court the Judge will want to know why they have not embraced the mediation route.  For those who do not have the means and in the absence of legal aid they will be left floundering in no man’s land with no helping hands on either side.

For further information, contact Helen Saggers.

The information given in this article is of a general nature only and should not be considered as advice applicable to any particular situation for which specific request should be made to us.

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