THE BLOG

A Little More Conversation: How Mediation Law Change Can Help Take the Element of Dispute From Divorce

22/04/2014 15:02 BST | Updated 21/06/2014 10:59 BST

Relationship breakdown is seldom easy for those involved. In some instances, emotions are so raw that the fracture can lead to an irreconcilable breakdown in communication.

The desire to demonstrate who was right and who was wrong compels individuals to air their differences in court. However, that does not just mean turning up at court and asking the judge for a decision.

It can mean a lot of preparation, investigation, time and expense and can have lasting consequences for the couple concerned and those close to them, especially their children.

Thankfully, conflict is not a common element of every divorce, even if divorce itself is far too frequent for the liking of many commentators. According to figures released recently by the Office for National Statistics (ONS), some 42 per cent of marriages now end in divorce.

The latest figures showed that not even the continuing rise in cohabitation in England and Wales - up 32 per cent in only a decade - was able to prevent divorce increasing once again during 2012.

That pattern was not confined to a small number of locations either, as the Ministry of Justice has conceded.

The belief that too many couples are engaged in lengthy, costly disputes has spurred lawyers and the authorities to try to resolve divorce in settings more constructive and certainly less confrontational than the courtroom.

Three years ago, I established a Family Mediation service at Slater & Gordon, which aimed to help couples determine the terms of their divorce settlement without the need for either party to attend court.

Mediation has, in fact, gained favour with ministers too and is the basis of what the Government has described as radical reforms of the divorce process. This week, those efforts take another step forward when the provisions of the Children and Families Act come into force.

It means that couples will be prevented from going to court to argue their respective cases if they have not already attended what is known as a Mediation Information Assessment Meeting (MIAM), during which the benefits of mediation will be explained to them.

Mediation is thought important not just for its potential to reduce the strain on an already busy court schedule. The Justice Minister, Simon Hughes MP, has described how almost three-quarters of family matters going to mediation are resolved, either in full or in part.

A further piece of research discovered that legal advice to tie up any loose ends was only required in six per cent of mediations, more than three times less than in the case of family matters which went before the courts.

Nevertheless, there are those who believe that being obliged even to think about mediation amounts to something of an obstacle and delays the prospect of achieving a settlement - a position which is contradicted both by my personal caseload and broader statistics.

That is why we and other family lawyers have already seen a rush of people making applications to have their day in court before the new rules took effect.

I think that regardless of the growing number of couples who experience the advantage of mediation at first hand, there will always be individuals for whom a court hearing will seem an integral part of divorce.

I believe that might be countered by exposing spouses to mediation as soon as they consult lawyers about formally bringing their marriage to a close.

Avoiding discord when dividing joint marital assets is important but I and my colleagues would argue that when the welfare of children becomes a central issue, it is even more so. The ability for parental disagreement to have a negative impact - something reported on by professionals with far more specialism than myself - places an even greater premium on calm and controlled discussions.