There have been a number of articles in the press this weekend, including the front page of today’s Times, regarding the government’s proposals to make it compulsory for divorcing couples to try mediation before commencing proceedings at court.
David Norgrove has said that the family court service is under “tremendous strain” and therefore, whilst not pointing the finger at lawyers, The Family Justice Review appears to advocate that the role of the lawyers within family law should be reduced to a minimum. Are lawyers to blame?
Mediation is a way of resolving disputes and can work very well between many couples with specific issues such as the arrangements for children. The mediators are neutral and will not take sides. Mediation is not always appropriate or possible. In cases where there has been domestic violence it is not usually appropriate to place the abused in the same room as their abuser and expect them to try to negotiate a settlement when in the past such disagreements have been settled by violence.
The mediator cannot impose a settlement upon a couple and either party can terminate the process at any time if they have an irreconcilable difference of opinion. Will the mediator be able to pose appropriate questions to consider the disclosure of an individual? An article in the Telegraph on the 15th October indicated that one in ten men would hide assets from a partner in divorce. If the partner has not been involved in the running of the household finances how would they be protected? The court system is designed to protect the vulnerable.
Would compulsory mediation delay matters and increase costs? Couples currently have a choice and their circumstances often determine which often is the best option for them. Lawyers should always discuss the options available to an individual including the alternative dispute resolution methods to enable every client to make the choice as to which direction they want to go. A lawyer should always be acting in a client’s best interest based upon what they are told about a client’s case and they will have to justify their advice by producing a costs benefit analysis.
Clients are fully aware that it is their money that is being spent. They are increasingly looking at ways to reduce their outlay to lawyers and therefore want all of their options set out early with the estimate of costs.
Most couples are able to resolve matters without court proceedings. Some will begin the process but conclude a long way before a final hearing and perhaps the current system can be reformed to shorten timescales but with values of pensions taking at least three months to produce, there is no quick fix.
Most couples will view court proceedings as the last resort. Indeed many are becoming increasingly aware of collaborative law which advocates not going to court. Many lawyers have enhanced their own personal skills to qualify as collaborative lawyers enabling them to really understand their client’s needs.
We will need to see how these plans may work in practice. Will couples be required to undertake a certain number of mediation appointments over a certain timescale? Who will determine whether or not mediation is appropriate?
I represent many UK expats who live and work overseas but their spouses return to the UK and either issue here to secure the court’s jurisdiction which they believe is best for them or because according to law it is the most appropriate jurisdiction for the case to be heard. How would my UK expat clients attend mediation? How should that be funded?
No doubt we will have to wait and see what the formal proposals are but I would have to agree that reforms are necessary. The proposals need to ensure that if the courts can’t cope and CAFCASS can’t cope then appropriate resources are in place. It would be foolish to think that mediation is the answer if it is put under just as much pressure.
Mark Sage Blogs 