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Mediation – divorce

This year the Government plans to make mediation a compulsory part of divorce proceedings, when applied to resolving disputes relating to children and financial disputes.

Before couples enter into fully-fledged litigation about their children or their finances, it is intended they will have to attend mediation as a first step. There will be exclusions for cases involving domestic violence or where the parties live a long way apart.

Mediation is a form of alternative dispute resolution (ADR). A mediator assesses the issues at the start to see if the talking process suits the couple and the issues involved. If it does, then a series of meetings take place with the couple and mediator (sometimes two, if necessary) with a view to negotiating an outcome that both parties feel they can live with. A mediator is impartial and cannot give legal advice (except in very broad terms).

Making mediation compulsory moves away from the court model and towards ‘talking’ (or ADR) methods of resolving what are essentially private issues – how to split capital, income and pensions, or what the arrangements are for children after separation and divorce. The Government, of course, has a financial stake in encouraging this move, hoping to shave £100 million from the Family Legal aid budget by referring people to mediation. The theory suggests that court and judicial time would be saved by this move, thereby allowing judges to concentrate on the really vital cases which involve protecting vulnerable children or adults. Of course, one consequence of reductions to the legal aid purse might be that more people end up acting in person without legal knowledge, adding to the problems already faced by overloaded courts.

Putting the financial benefits to one side, the general principle of talking first, before litigation, is welcome to couples and lawyers alike. Many family lawyers have been practising a “no-court approach” for some years, recognising the distress and cost (financial and emotional) that litigation can wreak on people at a time of great sadness.

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