On 6th April 2011 new rules were introduced by the Government that were meant to ensure that family mediation was considered before making a court application for most general family law matters that it had not been possible for the parties to reach agreements about between themselves, including in relation to the divorce process itself, financial settlements and arrangements for the children of a relationship.
However, it soon became clear that these rules were not effective as many people, either directly or via their solicitors, were either accidentally or deliberately not considering family mediation before making a court application and many judges were not strictly enforcing the rule that there should be a form from a mediator (an FM1 form) to show that mediation had at least been considered by the person making the court application prior to applying to the court.
There have also been cases of one or both parties only contacting a mediator in order to obtain the FM1 form and of solicitors making it clear to mediators that they were only prepared to make certain mediation referrals on the basis that this was purely to allow the FM1 form to be provided rather than for the use of mediation to be considered as an option.
Hence, over the last 3 years there has been a lot of debate about whether the rules relating to the use of mediation should be tightened or not. Should judges be able to proceed with a case when there is clearly no FM1 form on the file? Should one or both parties be able to simply tell a mediator that they are not interested in or willing to attend mediation? Should solicitors be allowed to advise their clients that mediation is not appropriate rather than asking the mediator to assess the suitability of a case? Or should mediation be compulsory, possibly with a number of clear exceptions and guidelines that would need to be followed?
My answer to these questions starts from my belief that courts are a particularly inappropriate way to try to resolve most family issues. Without doubt, there will be certain situation when one party’s behaviour or the legal complexities of the case itself will require the intervention of the courts, both in terms of seeking the legal expertise of solicitors and barristers who specialise in these areas and also in terms of seeking a legally binding determination from a judge.
Indeed, I would go as far as to say that the traditional route of solicitors sending letters backwards and forwards, thus detaching the clients from the process and allowing them to hide behind their legal advisers whilst also risking an escalation in the level of conflict present, is generally not the most appropriate way to start discussions about a family law issue. Whilst many lawyers have greatly improved their approach to family law issues, especially with the work carried out by members of organisations such as Resolution (whose members need to follow strict codes of conduct), I believe very strongly that the most effective way to deal with the majority of family issues is to start by considering mediation and then to seek legal advice after this initial phase, either in parallel with the mediation process or in place of it when cases do not successfully resolve during mediation.
In light of these beliefs, my solution would be to make it compulsory for most parties to consult a mediator, with there being some clear exceptions (such as when there is a risk of harm to one party or a risk of child abduction or a risk of assets being hidden by one party) which the court would then explore as part of the application process (and return the case to mediation if there was not sufficient evidence that the case is indeed an exception), and with there being sanctions against any party who did not engage fully in the mediation process, such as a costs order being made against them during the subsequent court proceedings or even with the outcome of the court case itself being different e.g. a financial penalty in a case involving finances or a recognition that the person in question was not acting in the best interests of the children by failing to engage in the mediation process.
Inevitably, there will be debates about exactly how such a system would operate but the key point is that the vast majority of people will benefit from the promotion of mediation as the first port of call, with solicitors then being the second line of defence and the courts being the final place to seek a solution, rather than the current system where far too many people end up in expensive, time-consuming, emotionally-draining and unnecessary legal disputes. I just hope that the Government, in line with comments made in recent months and indeed made gain in recent weeks, is prepared to spend the time and energy required to create a family law system that is fit for purpose and that includes the use of mediation as a key cornerstone in this new system.
Euan Davidson (a member of the Family Mediators Association)
Godalming Family Mediation
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.