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More mediation the key to fixing the family courts?

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There has been a rise in interest in the media in the last week or so about the role mediation plays – or can play – in divorce proceedings. This is because of the countdown to the publication of the Family Justice Review, something billed as a far-reaching analysis of how the courts deal with families. Initial findings of the Family Justice Review Panel are due to be published “soon” though don’t expect any definite recommendations until this time next year.

The reason for the grandiose review is that the system is unquestionably under strain, with the cost to the State more than £800 million a year. Rightly or wrongly, there is a perception that lengthy legal battles relating to divorce particularly need to be tackled and made more palatable for children and parents alike. Then there is the issue of grandparents having no legal rights to see their children’s children if the parties involved decide not to be helpful. In addition, fathers understandably complain that the system is skewed towards mums: no matter what orders the court makes, if a mum refuses to acknowledge it, there is little that can be done to force the issue.

There is clearly a lot of ground to cover. Just how well a single, thinly-spread review is going to do this remains to be seen. However, the one issue that is getting most exposure at the moment is the issue of mediation, which should be considered by more people as a way of settling access and residence issues without costly and upsetting trips to court. This involves people sitting down in a room in an adult way with facilitators and agreeing a way forward. There is no courtroom battle, as such.

Will this help though? Justice Minster Jonathan Djanogly believes so. He told Radio 4: “Too often people in family breakdowns are using court as a first answer when they shouldn’t. Often it’s dealing with contact with children or intimate personal relationships that really shouldn’t be going before the courts. We are determined to look at this.”

He added that he felt the tax-payer should not have to foot the bill for courts just because parents won’t mediate first and wants to see family law specialists help make couples aware of the options.
Is this really a true picture though? Whilst, of course, there are some people who relish the idea of a fight and so want to go to court, in my experience many couples manage to avoid this and know it is better for all concerned if they can avoid a court appearance and sort it out amicably.

Our lawyers are trained to work with clients to get agreement. Mediation is one option, but using lawyers who genuinely want to get an amicable solution for their clients is another – and one that is already widely used. I am nervous at the prospect of having new regulations thrust at us on this issue where I don’t honestly believe they are needed. Very few indeed of our clients end up in Court and when they do it is normally due to their spouse being implacably opposed to any form of sensible discussion at all.

There are additional issues that a Review could usefully demand too:

  • please, please can the Court system be made to use email? This is 2010 after all. We go fast, our client goes fast, sometimes their spouse's lawyer goes fast but then we slow down to a near stop with the Court system sending us things by letter--and 2nd class!
  • can we only have accredited family lawyers licenced to work as family lawyers in these cases? This is no place for the "I do a bit of divorce" people.
  • I look forward to the concept of "no Court divorce". Just register and get it later.
  • No proper attempt at mediation should equal no right to go to Court. (Personally I would interpret "mediation" as including negotiaiton too)

Andrew Woolley
Divorce Solicitor

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