THE HISTORY OF FAMILY MEDIATION – Part 1

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.

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Modest growth for family mediation

New government measures have resulted in a significant slowdown in the growth of family mediation, a popular form of dispute resolution which avoids much of the acrimony, expense and delay associated with traditional court proceedings.

In April, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect meaning that legal aid (public funding) was cut significantly by the coalition government with over 250,000 private law cases suddenly falling outside the scope of public funding. Despite the funds this freed up, only £10m extra was directed towards family mediation. In 2011 the pre-action protocol was introduced dictating that those receiving public funding for divorce must attend mediation information and assessment meetings (MIAM) before they can apply to court for the resolution of child or finance related issues and those who fund divorce privately are expected to do the same.

One may assume that this protocol would lead to higher numbers of mediation cases but the opposite happened. There were far fewer mediation cases in April, May and June and many specialist family mediators reported falls of over 60% in their monthly pay packets.

The government has also been accused of failing to make the public aware of the advantages offered by family mediation. Aside from a short YouTube video about mediation, little effort was made to promote it. Whilst the huge cuts to legal aid have been well-publicised, little is known about family mediation and many assumed that public funding had been withdrawn in this area as well.

A major issue for family mediators is that the rules surrounding MIAMs are not properly understood and often not properly enforced. For the past 2 years, protocol has dictated that it is ‘expected’ that those who are privately funding family law cases will attend a MIAM. However, by failing to make this compulsory, couples have been able to completely overlook family mediation, instead going on to clog up the court system with lengthy and expensive disputes. Furthermore, FM1 forms – which register the attendance of a couple or detail why they did not attend – are often not filled out and presented alongside the court application as is the legal requirement. Indeed, in order for the protocol to work, the courts need to enforce the rules more rigidly and ensure that applications are not granted if forms are not submitted or valid reasons are not given for not attending MIAMs.

The situation may improve because the incoming Children and Families Bill will make it a legal requirement for all couples to attend MIAMs. Unfortunately, this act is not due to come into force until spring 2014.

Nearly 100,000 people receiving public funding have made use of family mediation for the resolution of their family disputes in the last half a decade. Whilst there are no figures for the number of qualified mediators, one can only hope that individuals will not be put off training for their qualifications due to the recent struggles of mediators.

Looking for experienced family mediators? Call us now

Although family mediation has not been as widely used in recent months as family lawyers expected, it is nevertheless a highly effective form of dispute resolution which is generally faster and less acrimonious than traditional court divorce. For more advice on family mediation from family law experts, call:

SALISBURY [01722] 422300

AMESBURY [01980] 622992

ANDOVER [01264] 364433

OR e-mail our team at advice@familymediationcollaborativelaw.co.uk

 

The Success of Family Mediation in Other Countries

A global brand

Family mediation is now available around the globe, in Asia, Africa, Europe, the Americas. The ability of this alternative dispute resolution method to put down roots over the last thirty both regionally and nationally has undeniably been inconsistent, but its geographic spread has been inexorable and in some countries it has blossomed and been fully integrated into the framework of family law.

A home grown US success story?

Family mediation in divorce was first officially recognised and associated into a legal framework in California in 1939. It has since become a fixture in the United States being mandatory in thirteen states and discretionary in twenty two. Interestingly in the states where its employment is mandatory, family mediation has achieved the highest success rates.

Its universal acceptance as a resource in the United States has not however caused it to be looked upon as a serious alternative to representation by a lawyer by either the general public or the legal profession itself. It is still perceived, perhaps as a throwback to its originals during the Great Depression, as being the poor person’s alternative to the law. That said practitioners outside of the US, still look on that country as the spiritual home of family mediation and it is still recognised as a hotbed of innovative developments in the field.

The European experience

The progress and success of family mediation in Europe has had a somewhat more chequered history than in North America. It has however followed more or less the same developmental path in each European country it has reached over the last three decades but with drastically different success outcomes. Ideas were generally picked up upon from areas of the world where family mediation was already being practiced and introduced on a wave of euphoric enthusiasm, by practitioners who rapidly formed themselves into professional organisations.

From that point onwards the fortunes of family mediation varied greatly from country to country. In some it was quickly recognised as a viable alternative to the adversarial court system, eventually receiving legal regulation or absorption into various other regulatory or best practice frameworks. In other countries it languished, ignored by government and the legal profession and operating on a small scale private basis albeit with not an insignificant number of extremely highly trained mediation specialists at its disposal.

Currently (2013) is possible to zone the levels of utilisation of family mediation across Europe in the following ways:

Family mediation – levels of utilisation across Europe

Area Era of introduction Incorporated into legislation or other regulatory frameworks? Use/awareness

In Eastern Europe, family mediation was introduced in the 1980’s but awareness and use of it has remained low.

The same is true of Southern Europe where (excluding Spain) the use and awareness of family mediation has been low.

In Spain there has been fairly high use and awareness of mediation which has become firmly embedded in legislation.

The same is true of Scandinavia which only introduced mediation in the 1990’s but has experienced a very positive response towards it. In Northern Europe there were mixed reactions.

False dawns and compulsion

There have been shining examples of progress in gaining a greater acceptance for the use of family mediators around the world. Sometimes these have proved to be flashes in the pan, false dawns such as France’s hosting of the first European conference on family mediation in 1990 only for the country to experience two decades of foot dragging by the legislature and legal profession before family mediation was considered a general component in family proceedings – and it still not widely used.

Occasionally though there has been progress that has resulted in a national step change of opinion as has been the case in Australia with family mediation’s elevation into the national spotlight in The Family Law Amendment (Shared Parental Responsibility) Act 2006. Other countries, such as Austria, Belgium and UK have successfully embedded (or are in the process of doing so) the use of family mediation into legislation

People like to sit on the spot

Generally however, it has so far proved that only where exposure to family mediation is mandatory does it gain the exposure, cultural acceptance (sometimes) and significant success rates that would signify that it has fulfilled anything near its full potential. Where is not mandatory, it tends not be sought, used or particularly successful. We are all seemingly still firmly wedded to the idea that you need legal representation to divorce, even when a far more effective and less bruising alternative would suit some of us much better.

Call our mediation experts on [01722] 422300

The family law mediators here at Bonallack & Bishop can help you with the mediation process.

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Reasons to instruct a lawyer prior to family mediation

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Increasingly, separating couples are looking for alternative methods of dispute resolution to traditional divorce in the family courts. The traditional court based approach to divorce is increasingly considered by many to lead to unnecessary cost, delay and bitterness. One of methods favoured by separating couples today is family mediation which is usually cheaper, more amicable and quicker than court divorce in the majority of cases. This method does not necessarily require a lawyer during discussions and the emphasis is upon spouses working towards a settlement themselves. However, before the separation agreement can be made binding, parties will need to receive legal advice.

There is a common misconception that all family lawyers will attempt to force clients to push for everything they can get out of a divorce, picking up legal fees as the process drags on. Whilst a few such lawyers may unfortunately be practicing, the vast majority are simply committed to helping their clients reach fair outcomes without delay and acrimony. Ultimately, a good family lawyer will have a number of clients who need to their time so they are unlikely to want to waste time unnecessarily on cases and most importantly, they are keen to protect their reputations.

Family mediation – do I need to instruct my own lawyer first?

So, why instruct a family lawyer before the mediation process starts? First and foremost, it is important to remember that family law is very complex meaning that it can be very difficult to enter into a process like family mediation if you are unsure of how the law could affect you. An expert family lawyer will be able to advise you on the range of possible outcomes from your divorce settlement meaning that you are entering discussions with an idea of what a fair settlement would be. Receiving such legal advice early on means that parties should not end up in a position whereby a settlement is agreed only for one spouse to later discover that they have been given an unfair share. Without such advice, parties could end up in court which is of course what they sought to avoid in the first place by choosing family mediation.

Instructing a family solicitor early on also means that you can be sure that the settlement you emerge with fulfils the necessary legal criteria and is fair on those involved. After all, it would be disastrous if you worked towards an agreement only to discover that it’s unlawful.

Divorce – whether it’s pursued in court or through mediation – is a very emotional and often stressful process which can make it difficult to be reasonable during discussions. Your lawyer will be able to tell you honestly if your demands are reasonable whilst also offering support throughout the entirety of the process. In many ways, it is better to have a lawyer providing this support during mediation meetings than a friend or relative because your lawyer will not be emotionally invested in the case. As much as you want a sympathetic and personable lawyer, you ultimately want them to be professional and to focus on achieving a fair outcome.

Our expert family mediation lawyers can help you – call [01722] 422300 today

Here at Bonallack and Bishop, we are big fans of both family mediation and collaborative law as sensible ways for many couples to handle their divorce and relationship breakdown. Two of our family lawyers are also trained family mediators and three of them are also fully accredited collaborative lawyers. What’s more, they are committed specialists – family law is all they do. As a result they have vast experience and specialist knowledge to draw upon meaning that they are perfectly placed to advise you on the family mediation process – whether as your lawyers advising in the mediation process, or as the appointed family mediator in your case.

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Ringwood Family Mediation and Collaborative Law

Everything changes when you get divorced. Your financial situation becomes uncertain and you are likely to see your children less than you used to. It is therefore crucial that you and your ex-partner make fair arrangements during your divorce proceedings and avoid falling into the bitter disputes that so often plague separating couples. By using family mediation or collaborative law you can avoid the acrimony, cost and delay so often associated with traditional divorce proceedings saving yourself great strain and dignity in the process. Here at Bonallack & Bishop, we are committed to mediation and collaborative law and can help separating couples in Ringwood achieve fair resolutions for their divorce disputes.

FAMILY LAW ADVICE TO SEPARATING COUPLES IN RINGWOOD

Couples who are willing to sit down with each other in the company of specialist family lawyers in order to resolve their disputes accordantly often find that family mediation and collaborative law saves them a considerable amount of money in legal fees due to the greater ease with which solutions can be found. However, couples who will simply argue with each other throughout the divorce process and are unwilling to cooperate will not benefit from the process.

CONTACT OUR FAMILY MEDIATION AND COLLABORATIVE LAW EXPERTS ON [01722] 422300

If your separation, divorce or civil partnership dissolution is appropriate for either of these dispute resolution method our fully accredited collaborative lawyers and jointly trained lawyers/family mediators will be able to tell.

Both your initial telephone advice and your first 30-minute appointment are FREE of charge, so why delay?

Call [01722] 422300 and get your first phone consultation FREE of charge, on top of your FREE first 30 minutes appointment.

Alternatively, you can reach us via email at advice@familymediationcollaborativelaw.co.uk