Recent developments mean that couples will be required to initially seek mediation as a first attempt to resolve the matters relating to separation. Mandatory mediation is set to be introduced for ‘low level’ divorce / civil partnership dissolution cases in England and Wales.
Mandatory mediation means that before a couple can start legal proceedings, they must sit down with a neutral third party – a trained mediator – to try and come to an amicable agreement on the issues surrounding their separation. This can include childcare arrangements, dividing assets, and financial agreements.
Whilst there are benefits of opting for mediation, including approaching discussions in a more amicable way and also a wide scope for potential outcomes, there are significant drawbacks to the government’s proposals for mediation to become mandatory.
Firstly, forcing couples to mediate is at odds with its purpose, which is for parties to compromise to settle. Whilst it’s good to hear that any cases involving domestic abuse will be excluded from mandatory mediation, there are plenty of other occasions whereby mediation is unlikely to be the most effective pathway; and may ultimately lead to the process being lengthier and more confrontational.
Whilst alternative methods of dispute resolution, such as mediation and Collaborative Law, can offer the benefit of relatively lower costs, this isn’t always the case. If court proceedings then follow as there’s no agreement, you can end up in a situation whereby clients incur significantly more costs.
It should also be noted that mediators cannot give legal advice. This potentially leaves clients that don’t take separate legal advice open to making costly mistakes. Those facing divorce or separation would be well-advised to take legal advice to clarify their rights and ensure their position is protected. Seeking such legal advice alongside having to attend mediation can mean that costs are often not insignificant.
It is also questionable as to how mandatory mediation would work in practice as there are unlikely to be sufficient numbers of trained mediators available should all separating couples need to attend mediation meetings.
Obtaining advice from an experienced family law solicitor can help clients to reach an agreement by approaching matters in a pragmatic way. Clients that consult a solicitor at the outset and receive specific advice relating to their individual circumstances can begin negotiations from a more informed perspective. Whether in relation to financial settlement or child arrangements, a solicitor can advise what a court would be likely to order, meaning an early proposal will possibly achieve the same outcome at less cost.
In summary, whilst something needs to be done to try and reduce the backlog in the family courts, mandatory mediation is unlikely to be the ‘golden key’ that the government thinks it is. By seeking solid legal advice at an early stage, clients can approach matters from an informed perspective and potentially, therefore, reduce the time taken to reach an agreeable resolution.