Family mediation is often an excellent way for couples who are divorcing or separating to resolve disputes about their children or finances. However, when mediation fails, often the only remaining option is to go to court. This is often regrettable; litigation through the court is far slower, more expensive and more acrimonious than mediation.
There are other alternatives to mediation and litigation; unfortunately they are rarely appropriate where mediation has failed.
Firstly, what is mediation? Mediation is an alternative to court proceedings. A couple meet a neutral family mediator who will hep them to discuss matters by facilitating an agreement between them. The mediator does not give them legal advice, nor does he or she make a decision about will happen. The mediator’s role is to help the couple to reach a decision.
Mediation is not the same as relationship guidance counselling. Its purpose is not to save a marriage or relationship, its role is to provide a means of agreeing what will happen about children or finances. Nor is mediation an alternative to using a solicitor; it’s an alternative to using the court. It is prudent in most cases to also seek legal advice from a specialist family law solicitor so that you know what your legal position is and can obtain advice on proposals made in mediation. This makes it more likely that mediation will be successful. Where a proposed agreement is reached, the mediator drafts a memorandum of understanding which both parties review with their solicitors (if they have a solicitor) and then, if the agreement is confirmed, the solicitor does any work necessary to obtain a consent order from the court reflecting the terms of the agreement, so that it is then legally binding.
Mediation has many advantages over going to court. It is faster and significantly less expensive. It allows the parties to retain control about the outcome, rather than surrendering it to the court. They can come up with more imaginative solutions than the court, take into account things that a court might ignore and discuss issues that a court might consider trivial. Mediated agreements are less likely to break down than arrangements imposed by the court, especially in relation to children, and mediation can maintain or even improve a couple’s ability to communicate, whereas court proceedings often destroy it forever.
Not all cases are suitable for mediation. It is often not appropriate to mediate where there has been domestic violence and abuse, or where one of the parties have mental health problems or addictions. However, many cases that are perfectly suitable for mediation end up in court because one or both parties refuse to mediate, or mediation breaks down. You cannot force a party to mediate, save for an obligation for an applicant to attend a Mediation Information and Assessment Meeting (MIAM) before he or she can make an application to the court; there is no obligation on the respondent to attend. (The obligation to attend a MIAM was once widely ignored, but nowadays any applicant who makes an application without first attending a MIAM is likely to find that at the first hearing, the judge will order them to attend a MIAM before the application can be proceed, unless there is a genuine emergency. The court is so busy that it now clamps down on an applicant’s failure to attend MIAM).
The Family Court is overwhelmed with cases, many of which could be much more swiftly resolved in mediation. Often, when faced with an ex who refuses to mediate, it can seem like the only way to make progress is to apply to the court. However, there are other options which can be used.
The parties can negotiate through solicitors. Negotiation is usually much less expensive than court proceedings. However, if the other side, (often unrepresented) refuses to budge, then an application to the court may be the only remaining option.
The parties can agree to use the collaborative process, whereby they instruct specially trained collaborative solicitors to undertake face to face negotiations in a non-confrontational and constructive manner where the parties and their lawyers work together to find a solution. This has many of the same advantages as mediation, with the added advantage that both parties have a solicitor closely involved throughout. However, you cannot force someone to use the collaborative process and if they won’t do it, it is a non-starter. The formal collaborative process cannot be used unless both parties have their own collaborative solicitors; nowadays when free solutions undertake legal aid work and very few parties even qualify for it, a party might decline to incur the cost. (As a solicitor who undertakes collaborative cases and who has also practised in the past as a mediator, I generally take the view that if mediation has been tried unsuccessfully, the collaborative process is probably not going to work either.)
Another alternative to family mediation is arbitration. This is effectively a private court system where the parties’ commit to abiding by the decision of an independent family mediator. The mediator will make a decision applying the same law as the court, but uses a procedure that tends to be faster and more streamlined than the court process. It should therefore be quicker, less expensive and result in the same outcome. It is possible for parties who represent themselves to use arbitration. You would therefore think that people who are facing court proceedings would much rather use arbitration than litigation; its advantages over litigation are obvious. However, as with mediation, negotiation and collaborative process, it is voluntary; you cannot force a party to commit to the arbitration process (barring perhaps a case where there is a contractual obligation to arbitrate in a separation agreement, which rare). I often find that many solicitors have little experience or understanding of arbitration, as relatively few family arbitration have taken place in the decade o so since it was introduced. They can therefore be reluctant to consider it as an option.
It is the voluntary nature of alternatives to court than means that where mediation fails to take place or is tried but unsuccessful, people often inevitably end up in court. Some people think that somehow things will be better if they get their day in court. They rarely appreciate beforehand that not only is litigation expensive (if you use a solicitor), but it is also risky, slow, stressful (and even more stressful if you don’t have a solicitor), and that you can often both end up with a fudged decision which satisfies neither party.
Family solicitors endeavour wherever possible to keep their clients out of court. There are of course some cases which will always have to be litigated, but wherever possible, people should not squander the opportunity to use alternatives to court; mediation, negotiation, collaborative process and arbitration are often preferable. Taking advice from specialist family solicitor at an early stage in a dispute helps clients to choose the best route to a successful outcome.
7 January 2023
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