It came as a surprise to learn last year that the current UK government was considering forcing couples to attend mediation to separate their marriages. This would go far beyond the current requirement that individuals seeking to bring a claim to court only need to consider mediation as an option by attending a Mediation Information and Assessment Meeting (MIAM). Therefore, when it was announced that these far-reaching plans had been scrapped, many practices were left with no choice, especially given that at the core of mediation is the principle that both sides must voluntarily come to the negotiating table. The house was relieved. As soon as coercion is introduced into the process, the voluntary element that underpins the purpose and ultimate success of mediation is removed. The plan was that estranged couples would either go to mediation just to “check the right box” or go to mediation for all the wrong reasons.
There are many reasons why mediation is not appropriate for all disputes and for all separated couples. An obvious example of why mediation should not be done would be to protect weaker parties or victims of domestic or other abuse, similar to the current position. You also need to consider the important aspect of timing, i.e. when it is appropriate to use mediation in your individual case. There is no doubt that participating in mediation at the optimal time will maximize your chances of success. For example, in the case of financial disputes, the author’s personal experience is that the parties have typically already undertaken a thorough exchange of financial disclosures and have had the opportunity to obtain separate legal advice regarding such disclosures. Understanding your rights and options means you can make the most of the mediation process by negotiating in an informed manner and listening to what is important to the other party, thereby shaping your offer. You will know how to make a proposal. . Mediation, if used properly and at the right time, can be the perfect toolkit for separating couples. On the contrary, if it is forced on a party, especially at the wrong time, it can be a terrible disaster.
The mediation voucher scheme, which supports separation disputes for couples with children, was launched during the pandemic to reduce demands on family courts. It provided all families, regardless of their means, with a lump sum payment of £500 per family towards mediation costs. However, this can only be used with a certified mediator and only if the dispute relates to children. Additionally, the number of vouchers available is limited. If you don’t have it yet, it will end while supplies last. This has certainly motivated more parties with child-related disputes to at least try mediation, as it has removed the initial uncertainty about the cost of the first session. They were able to “try it out” for free.
However, voucher systems are not without their drawbacks. Parties still must first fund their own individual sessions (MIAM). £500 isn’t too far off, especially considering that the central London mediator and VAT are tops, and session lengths are rarely less than his 90 minutes.
There are many excellent family mediators who are not yet certified. Certification is a very rigorous process, and after completing mediation training, you will have to resolve all issues (money and child issues) in 3-4 different cases over a period of approximately 2 years and successfully mediate. In other words, the parties are required to reach a complete “agreement.” There are exceptions to extend this. For example, maternity leave. Those seeking certification must complete an extensive portfolio of work, including a thorough written evaluation, and must be directly supervised by a professional practice consultant when conducting mediation. Thinking about the latter is nerve-wracking in itself and requires both mediation clients to agree to be monitored, which is not often freely allowed. There are many good mediators who are not accredited and who should be able to propose and have a mediation scheme accepted, but are unable to do so. Non-accredited mediators may also be less likely to inform their clients about voucher schemes (although they should) if they are likely to lose them to accredited mediators.
If the government wants to effectively use mediation as a means of reducing the burden on the current court system, it should expand the voucher system more widely. The system should be opened to a broader class of mediators, including not only certified mediators but also experienced mediators and those working toward certification. This should also apply to all family-related disputes, not just those involving children. Mediation is often of great benefit in disputes over money and property, such as property claims for unmarried parties, and is an alternative to litigation, as the impact of litigation costs can be very severe under the Civil Procedure Rules. It should always be considered as a better option.
Additionally, the scheme must cover the entire first 90-minute session with the mediator, even if it exceeds the current limit of £500. That way, all separated couples can truly “try before they buy” and reap the benefits of mediation early on. Voucher schemes need to be more clearly advertised and communicated to the public. The benefits of comprehensively resolving a case with the assistance of a specially trained third-party mediator can be particularly beneficial when dealing with lawyers can be lengthy, combined with the delays associated with not confronting the other party directly. This should be noticeable when compared to the option that has many options.
The general public’s lack of education about what mediation actually means and how it works is a major factor in the fairly low representation of mediation in cases. Some family law professionals do not fully understand what mediation means or how it actually works. If you don’t fully understand what mediation is and have never seen it in action, it’s very difficult to sell your services. We mediators are the biggest supporters of mediation because we know it can and does work, and we know how it works.
Raising awareness of mediation among the general public is the key to making it successful and widespread. This includes educating the separating couple about all the different ways mediation can take place. Apart from traditional mediation, parties can choose shuttle mediation, which does not require them to be in the same room as each other, or hybrid mediation, which brings in third-party experts such as accountants, appraisers, social workers, and experts for the parties . lawyer. In certain more limited cases, mediation involving children is also an option, allowing their views to be directly heard and considered during the process.
Mediation can also be conducted online. This is especially effective for international clients or clients who don’t want to be in the same room or near the other party, but are willing to try mediation. Video conferencing is great in this regard, as it works well with the addition of breakout rooms, but in-person mediation also has many benefits that can be overshadowed.
In general, there is no one-size-fits-all approach to mediation. The more you can explain the bespoke nature of mediation and how it can be used for individual disputes, the better it will be taken up. While it is certainly better for governments to consider these other options to widen their net than trying to force a dispute resolution method on people, it is by its very nature the opposite of mediation. .
Jessica Reed is a partner and mediator at Dawson Cornwell LLP.
