6/4/11 – A new dawn for family law?

From Wednesday 6 April 2011, nearly everyone who wants to make an application to the court for a financial order linked to a divorce, will need to attend, beforehand, an information & assessment meeting with a mediator. The same requirement will also apply to applications for most parenting matters – such as where a child ought to live, or how much time a child ought to spend with each parent. The mediator will assess whether the case might be suitable for mediation (or some other dispute resolution process such as collaborative law) and, if it is, provide information about who provides the service. The rule is likely to result in more couples choosing to mediate or discuss their difference around a table, with fewer cases decided by a judge. What nobody can predict, though, is how big the impact will be.

My guess is that the effect will be significant. I have been part of a small team of family mediators who, since February 2010, has been offering mediation to parents who have made applications. Our experience has been validating. Of the cases which are appropriate for mediation (where there is no serious domestic abuse or where social services might already be involved) around 80% are resolved with a mediator’s help. These are cases that are not just lodged by self-representers, but by those who are represented by solicitors as well.

Around 90% of Ipswich’s experienced family solicitors are either trained as collaborative practitioners or are mediators. As a rule I think it’s fair to say that we do not encourage our clients to rush off to court at the first opportunity. Yet, despite this, it’s clear from the results of the in-court mediation service that many cases which are appropriate for mediation are not being successfully referred to mediators. The new rule coming in on April 6, should help to direct these towards mediation, and other more appropriate dispute resolution processes, such as collaborative practice and round-tabling, and so save more couples from the grueling, lengthy, expensive and ultimately unsatisfactory (for most cases) court process.

There have been howls of protest about this from all sorts of corners. You won’t hear many complaints from those family solicitors who already refer their clients to mediators, or who mainly use other techniques to help their clients achieve better outcomes. Some solicitors are worried about how quickly their clients might find a mediator who is able to see them promptly (in circumstances where they know a judge will need to be involved). The most vociferous opponents seem to be those solicitors whose cases tend to end up in court more often than their colleagues’ cases seem to.

The way I approach all my cases as a solicitor is to simply listen to what my clients want. Some want mediation, some want collaboration, and some want something that’s not exactly either but a hybrid. I’ll recommend that they work with financial coaches, family consultants or any other professionals if I believe it is more likely to achieve a better outcome for them and their family. Unsurprisingly, given the adversarial nature and cost of court proceedings, none of them choose court.

I know because of the many I’ve met when training, and through the incredible exchanges I’ve shared on LinkedIn and Twitter, that there are many other solicitors and solicitor-mediators here and abroad who share my optimism that more husbands and wives, more couples, more civil partners and more families can find solutions for themselves, rather than have something imposed by a judge. There will always be a need for judges – to protect those who need protection, and to settle disagreements about the interpretation of laws – but these are a minority of cases.

The new rule can’t do this on its own, of course it can’t. But it does represent the beginning of the end of the largely archaic way family disputes are so casually dealt with by the family law system. So much so that I can already see the day when court will eventually be the alternative.

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