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Family Law Blog

Comment on divorce & family law 

Mediation message gets nearer, but no clearer

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I’m picking up on a theme from last week again if I may. It is a topic that is here to stay and, as April 6 looms ever closer, the more we can understand about the impact of the New Family Law Procedure Rules 2010, the better.

I think people do have a perception that the law is, more often than not, black and white. Guilty/not guilty. Divorced/married. It follows therefore that lawyers should all be very clear on what the rules are and how they should be applied. But when changes are introduced, often with little warning or consultation, all of us have to feel our way through to an understanding of the new guidance. That is the case with the increased emphasis on mediation that April 6 will usher in, with more couples forced to use mediation to reach divorce settlements rather than always reverting to the courts.

Just to kick things off nicely, the term ADR (Alternative Dispute Resolution) is being used more liberally now rather than mediation. Mediation is one of a number of ADRs, collaborative law being another. It is unfortunate that this appears to be a backwards step in terms of plain English, flying in the face of what I perceive to be positive changes as highlighted in my blog last week.

One of the issues with this strategy is that if more people are using mediators, there will need to be more mediators – and indeed clarity on exactly who qualifies as an accredited mediator to avoid unscrupulous individuals simply cashing in. In pursuit of this, I did some research to see if I could find a working definition of what a mediator is, so we would know exactly what the standard is that people have to look for. There has to be a standard, after all, as people need to have confidence that these people know what they are doing.

It remains unclear if there is a definitive explanation. However, there is a suggestion that the Family Mediation Council (FMC) is to ask the courts to agree that a mediator is of a standard approved by the FMC. That likely means people who’ve attended courses approved by them and creating fully trained people who have attended a special one day “assessment meeting” course provided by ....the FMC. You can make your own judgements on that one.

Assuming we do reach a position of clarity on this, there is then the question of shortages. Family lawyers’ group Resolution is already suggesting that there could be a lack of suitably qualified and experienced mediators. A Ministry of Justice spokesperson suggests though that there are at least 600 family mediation services in England and Wales, and they did not expect capacity to be a problem. That means, at least, they must know what the criteria is to be a mediator!

Andrew Woolley
Family Solicitor

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