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.
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