Mixed feeling this week about the news that more couples are to be told to try mediation before going to the courts to settle their divorce details.
Issues like the division of assets are better dealt with through couples agreeing to speak to trained mediators to thrash out a deal rather than using up costly court time. From April, couples who are in dispute about their matrimonial finances will be pushed towards mediation.
Now on the one hand, I would agree that a lot of unnecessary court time is taken up by warring couples refusing to agree a settlement and dragging each other through as long a process as possible. This is not good for anyone and very costly. Any measure designed to halt this trend should be investigated. However, I can’t help thinking that this simply hasn’t been thought through fully.
We don’t yet know exactly how this will work. I understand it will not be absolutely compulsory, which is good. After all you might be able to force a couple to mediation but if they don’t want to settle, they won’t, and it could end up making the process longer if they then go to court after mediation fails.
I believe a greater reliance on mediators will cut some of the work coming to family lawyers in terms of court appearances, but I believe we will pick up significant additional work coming from mediators, such as agreement drafting, pension sorting and consent orders to counter balance this, so I have no objection from an income point of view.
However, a big concern is the loosely defined mediators who will undertake the mediation – a middle person to act as referee, but with specific family law skills to help achieve the best option. I am not aware of any definition or minimum requirement of who or what a mediator is. While most mediators I have come across have been very good, some, like in any profession I guess, are hopeless and expecting them to get to the bottom of complex businesses, finance and pensions issues seems wildly optimistic.
There is also the issue that, anecdotally, some women can feel bullied in mediation by a more skilled negotiator, perhaps a husband who negotiates for a living. Baroness Deech of Cumnor has said: “Women are reported to feel disadvantaged by mediation. This is because mediation seeks a compromise or agreement, and favours the articulate and determined over the cowed and quiet, apparently, and it is said female mediators are more persuaded by husbands' arguments than wives.”
As there is currently no timetable to let us know when the detail of the rules will be available, I think I’ll reserve judgement on whether this is progress or not.
Andrew Woolley
Family Lawyer
Read more: Family mediation in divorce