The back down

During the late 1990’s as the centrally led drive towards family mediation continued a number of developments occurred that eventually led to Government having to repeal the sections of the Family Law Act 1996 dealing with imposition of mediation. These developments included:

• A dearth of suitable mediators (the Law Society’s family mediation accreditation scheme wasn’t set up until 2000)

• The available family mediators being buried under an avalanche of people compelled to attend meetings to obtain legal aid but who had no intention of pursuing mediation and really wanted legal representation

• A sceptical, mediation averse legal sector, personified by solicitors who took advantage of people adopting the culturally traditional route of seeing a solicitor as a first step when divorcing to drip poison in their ears regarding mediation so that they would migrate back to litigation. It must be said that solicitors long after retained a marked scepticism regarding mediation’s ability to deal with complex financial agreements.

• Less than a third of the people referred to a mediation meeting by the Act, proceeded to use mediation to try to reach an agreement and of those who did only 45% achieved a settlement in children’s matters and even fewer, 34%, in financial matters.

The Government had found that encouragement and compulsion had failed to win the day for mediation in family law.

The fall out

The failure to legislate mediation into family law in the 1990’s left a mixed legacy. Initially, after a halcyon period of recruiting vast numbers of mediators in the anticipation of assured work, the sector found itself grossly over staffed and new mediation firms quickly went to the wall and many self-employed mediator sought other employment. However, the best in the field generally kept their heads above water and were, in the following decade, able to capitalise on the burgeoning acceptance of alternative dispute resolution in family law which had been kick-started by the state.

The initial mediation experiment in the 1990’s had highlighted the need for mediator-lawyers, a hybrid specialist who began to flourish as public acceptance for a divorce without the day in court slowly gained ground. This new breed tended to specialise in financial agreements whilst the non-lawyer mediators gravitated towards children’s agreements.

In the first decade of the twenty first century another alternative confrontational court settlements arrived from the USA in the form of collaborative law. Inevitably this initially drew work away from mediation, although it quickly became apparent to specialist family solicitors that their clients circumstances would generally suit one approach better that the other and so the competition between them was fleeting.

UK Family Mediation – Today and tomorrow

Family mediation currently has a relatively small but growing presence and it is recognised by experts in the field that it could potentially be used in many more cases than it currently is. That it is growing is down to the initially suspicious, verging on hostile, attitude of the legal profession to this form of ADR twenty years ago coming around one eighty degrees over the last decade with the best interests of their clients securing a complete ascendency on their ethical tick list.

The future of non-directive mediation is still not assured. The options open to divorcing couples continue to grow with the recent introduction of directive mediation on the Australian model and the consequences of the Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52) (which has been adopted by the UK government) still to be fully felt.

Under the Children’s and Families Bill, currently (2013) winding its way through Parliament, parties will be legally required, before applying to the Family Court, to attend a ‘Mediation information and assessment meeting’ (MIAM) or demonstrate that they are exempt from such attendance or that it family mediation is not suitable for them. And so, what goes around comes around and whether this latest legislative change will be any more successful at motivating people to ‘go the whole hog’ with mediation than previous attempts remains to be seen.

Looking for a local Family Mediator? Call our specialist Family Mediation team today

SALISBURY [01722] 422300   

AMESBURY [01980] 622992          

ANDOVER [01264] 364433                

OR e-mail our team using the email contact form below

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Family mediation drop off - MoJ response

If you are one half of a couple going through the difficulties of separation at the moment, are you aware of how a well trained family mediator can help? According to figures released by mediator Marc Lopatin, quite possibly not.

These figures show a dramatic decline in the number of couples using the service and have resulted in the Ministry of Justice seeking to strengthen its strategy relating to mediation.

Lopatin, founder of the organisation Lawyer-Supported Mediation, has obtained figures following a freedom of information request. They show that 14,758 couples attended mediation information and assessment meetings [known as MIAMS] during the period June to September 2012 – but this number fell to just 7,170 during the corresponding period in 2013. In other words, in the six month period since legal aid cuts were introduced in April 2013, the number of couples going through separation attending these initial mediation sessions fell by a surprising 51% – and between July and September, attendance fell by 58% on the previous year.

During the period July to September 2013, Bristol, Birmingham, Brighton, Manchester and Nottingham all saw monthly year on year falls of two –thirds in the numbers attending such sessions.

The figures compiled by Lopatin imply that the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act had the effect of halving the numbers of referrals for mediation within just a month of coming into force.

Mediation – the need for increased public awareness

Lopatin’s view is that the nosediving numbers allied with an increase in the number of people seeking to represent themselves indicates that separating couples fail to find family mediation “sufficiently compelling” as an option, despite the fact that the Ministry of Justice budgeted for a significant rise in the number of people choosing to opt for mediation to help them resolve separation issues.

However, a growing number of mediators feel that the main reason why mediation is not more widely used is a simple one – couples are not aware of it as an option, or do not fully understand how the process can help them, and in some cases both. This view seems to be reinforced by the Ministry of Justice, who have a poster and leaflet campaign underway to increase public awareness of mediation. The Ministry have emphasised that “millions of pounds” of legal aid remains in place for publicly funded mediation.

Lord McNally, Justice Minister, is working with the Family Mediation Council and the legal profession to address the issue, and says that the Ministry of Justice is fully aware of the dramatic decline in numbers of those using the service.

Resolution, a family lawyers’ group, have created a pledge agreeing to better help and support couples going through separation by ensuring they know about alternatives to going to Court, which McNally has signed.

Here at Bonallack and Bishop, we have been strong supporters of both family mediation and collaborative law as preferable alternatives to the traditional court approach to divorce for some considerable time. We suspect that one of the reasons that mediation hasn’t taken off as well as it should have done is that lack of sufficient awareness in the public at large. This website is an attempt to combat that lack of awareness.

Call our specialist Family Mediation and Collaborative Law Divorce Solicitors today

SALISBURY [01722] 422300          

AMESBURY [01980] 622992   

ANDOVER [01264] 364433                

OR e-mail our team using the email contact form below

Comments or questions are welcome.

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The history lesson

Mediation is recognised, by way of anthropological, historical and sociological research, to have had its roots in ancient times. It is the time honoured form of dispute resolution which has been practiced around the globe for millennia, its longevity a result of its effectiveness and adaptability down through the ages, across a range of cultures and civilisations. It still remains the principle method for resolving disputes in East Asia, especially in China and Japan where its extensive use enables the use of litigation to be reduced to the very minimum.

Family mediation – seemed like a good idea at the time

Mediation’s partnership with family law was encouraged by the Government in the United Kingdom for exactly that same reason; to reduce the escalating cost, both financial and psychological, that a rapidly rising UK divorce rate in the 1980’s and 90’s coupled the tradition of court determined divorce settlements was having on individuals and society as a whole.

Fired up by what turned out to be a wildly over optimistic assumption that the public if offered mediation would naturally prefer that route to confrontational, costly court action, the UK Government opened the way for publically funded family mediation by passing the Family Law Act 1996. The drive for mediation driven divorce agreements ran into many problems which included:

• The Government’s effort was perceived as being over centralised, one-size-fits-all and restrictive in both scope and time allocation.

• Responses from those who took part in the initial tranche of mediation information meetings were generally negative and included:

  •  A feeling that mediation was unnecessary as there was little or nothing to dispute in reaching a settlement
  •  One partner refusing to attend mediation
  • Too much distrust between partners to make mediation viable
  •  A cultural preference for instructing a lawyer and going to court

Out of the 7000-9000 people who attended the information meetings only 10% decided to attempt alternative dispute resolution in the form of mediation. Of that adventurous 10% only 37% found that it led to agreements being reached and in a great many cases only with the involvement of solicitors. It began to look as if the great mediation revolution was about to be stillborn.

A natural aversion to change?

Further research by the UK Government discovered that people’s attitude to family mediation became increasingly negative in the absence of sufficient information about the process and that they were apt to confuse it with counselling and reconciliation. Further the majority appeared to have a culturally embedded preference for lawyer managed divorce settlements and would cite the same reasons for avoiding mediation such as:

• Lack of issues to mediate.

• Good communication existing between the parties.

• Only one party willing to consider mediation.

• That divorce is too legal complex for mediation.

• One or both parties nurturing an obsession with protecting their own interests to the point of believing that only legal representation is appropriate for them.

The Government had proposed that mediation was to be publically funded by way of legal aid and that such legal aid would not be granted unless the applicants attended mediation meetings. There were exceptions to this regarding domestic violence and until more became available, the actual availability of mediators.

Call our specialist Family Mediation today

SALISBURY [01722] 422300

AMESBURY [01980] 622992

ANDOVER [01264] 364433                

OR e-mail our family mediators using the email contact form below

Comments or questions are welcome.

* indicates required field