By Melita Johnson
Over the past 10 years mediation has been high on the political agenda as a sound alternative to the court process. Family Mediator’s have seen an increasing level of commitment to alternative dispute resolution from all political parties. Mediation is now at the forefront of family law in England and Wales. In February 2011, Justice Minister Jonathan Djanogly announced that before making an application to court couples must first attend a meeting with a mediator to learn about mediation.
Practice Direction 3A and its accompanying pre-action protocol for family mediation Information Assessment meetings (MIAMs) came into force on April 6th 2011. Under this protocol all potential applicants before making their applications to court for a court order will be expected to have considered mediation as an alternative way to resolving their disputes. There is a narrow list of exempted parties.
This new approach to mediation will be a seen as a fundamental shift in practice and mind set for family lawyers. Prior to 6th April 2011, many family solicitors viewed mediation as a hurdle to pass before they could make an application for public funding.
The introduction of the pre action protocol and the supplement to the court powers in part 3 of the Family Procedure Rules 20110 are there to encourage and facilitate the use of alternative dispute resolution in family law. Mediation and alternative dispute resolution is unequivocally seen as the preferred way forward. All proceedings whether issued by a publically funded party or privately funded clients must have first attended an assessment meeting with a mediator to learn about the mediation process. At conciliation appointments in children cases in family courts it is not uncommon for the cafcass officer to invite the parties to meet with the on-site mediator at court in the hope of resolving matters.
Mediation has long been seen by those that support alternative dispute resolution as a meaningful and effective way of resolving family disputes. The mediating couple decide the terms of agreement. Mediation offers the forum for separated couple to sit down and talk about arrangements for children, property and financial matters. The mediator is there not to advise or control the mediation session but we (as mediators) are there merely to facilitate the mediation process.
A family mediator will be able to facilitate mediation sessions with parties where they seek to discuss what will happen to the children, where they will live, which parent they will live with, and contact arrangements. What will happen to the family home now they are separating, who will pay the mortgage or rent? How to split up possessions? How day to day living expenses and larger purchases for will be dealt with, now the parties are separated. Also how they will communicate with each other. This is quite important especially where children are involved.
Duncan Lewis mediation service is well placed to facilitate mediation sessions with experienced family and child care lawyers that empower the parties to make crucial decisions concerning their child, property and finance without having to resort to the costly and lengthy adversarial court route. Even if an agreement cannot be reached through the mediation process it is likely to have assisted the parties to narrow the issues of dispute which will consequently reduce their legal costs. The mediation process usually lasts between 3 – 5 sessions and can cost up to £4,000 for a privately paying party compared to anywhere from £8,000 - £15,000 for representing a party on a fully contested private law children or financial and property matter. From my experience the agreements reached through mediation are much more likely to last as the parties have themselves made those key decisions about their lives.
For legally aided parties the mediation process is free as long as they meet with a mediator that has been awarded a mediation contact by the legal services commission.
Organisations such as Resolution (represent over 5,000 lawyers) are concerned that with the government’s proposed radical changes to legal aid, it will leave mediation as the only option for clients who are eligible for legal aid. It is important to stress that whilst there are many advantages to mediation is it not suitable for all cases. Mediation is not suitable to resolve family issues which involve domestic violence and if they are major power imbalances which negatively affect the mediation process. Mediation might not resolve the issues in dispute. If the mediation process does not result in an agreement, it can add cost and time to the divorce process. Mediation requires parties to attend together - which will be an advantage to some and a disadvantage to others.
At Duncan Lewis we have a franchise with the Legal Services commission; meaning that clients who qualify for legal aid will not have to pay for our mediation services. We have experienced Children Panel solicitors with expertise in public, private law issues including property, financial, separation and divorce, and disputes concerning children. Therefore we are able to offer a tailored mediation service that best fits couples wishing to mediate.