Assessing the march of mediation in Family Dispute Resolution Week 2014

Guest blogger Suzanne Kingston, partner at Withers, examines DR options and progress so far in promoting non-court dispute resolution.

We have been celebrating Family Dispute Resolution Week since Monday, and dispute resolution practitioners have been marking the annual event with a series of activities around the country, overseen by the umbrella organisation for family lawyers, Resolution.  Family DR Week is aimed at raising awareness of the alternative ways that family disputes can be resolved, other than through contentious and costly litigation in the courts.

Various dispute resolution methods have been available for many years, but their prominence of mediation has come to the fore in recent years.  This follows the government’s promotion of non-court options for resolving family disputes, heralded by the introduction, in 2011, of Mediation Information and Assessment Meetings (MIAMs) to provide couples seeking to commence family litigation through the courts with information on the alternatives.

There is now a wealth of cogent, non-court options to explore:

  • Mediation: couples meet together, aided by the neutral input and guidance of a Mediator to talk through issues and work towards agreeing common ground.  The Mediator will provide general legal information and helps the parties reach consensus and it is normally helpful for the parties to have some legal advice in parallel with the process.  Arriving at a negotiated agreement that both parties can live with has huge benefits for ongoing relationships – which is often the reality where children are involved.  There are many other benefits; it can produce a quick resolution and it is also considered to be cheaper than the legal process.
  • Collaborative law: each party appoints independent legal advisers to participate in four-way negotiations.  The legal advisers and the couple sign an agreement at the start committing to resolve issues without resorting to court proceedings and work towards a bespoke solution.  The negotiations conclude with a consensual resolution and terms which can be approved by the court and made into an order.
  • Arbitration: this is a quasi-judicial process where a qualified arbitrator adjudicates over issues that the parties have not been able to agree about.  The arbitral award is binding and the arbitrator will produce a reasoned decision supporting the outcome.  The parties can choose an arbitrator with the right skill set from a pool of 220 Institute of Family Arbitration trained arbitrators, many eminent retired judges, high ranking barristers and experienced solicitors.  For the time being the scope of family arbitration is limited to financial and property issues, but arbitration has many characteristics to commend it.  The process is entirely bespoke and although the rules lay down a default procedure, parties can decide a timetable that is tailored to their requirements.
  • In addition to the DR models set out above, couples can also choose solicitor-led negotiation, and it may be possible to negotiate the outline terms of an agreement themselves.

Progress of mediation and dispute resolution

The numbers of disputes resolved through mediation got off to a good start following the introduction of MIAMs, but statistics compiled last year showed that, since cuts to public funding were introduced in 2013, the numbers of couples attending out of court sessions have plummeted by 47%.   Apparently, separating couples with no access to legal aid go straight to court as litigants in person, which is adding to the already over-burdened court system.  With more people representing themselves, family cases invariably take longer and take up more of the courts’ time and resources.  The effects on children are now well documented; a survey commissioned by Resolution and published this week sets out in statistical detail the detrimental effect of divorce on children; effects that Resolution argue can be mitigated by choosing non-court options.

The government has responded in a number of ways.  First, in April this year by making it compulsory to attend a MIAM before an application for court proceedings can be issued.  Second, by publicising the availability of legal aid for mediation (a large pot of money set aside for mediation went unspent last year) and third, in August, by announcing the extension of funding for a single free mediation session where just one of the parties qualifies for legal aid.  The hope is that the numbers of couples attending mediation and other non-court dispute resolution options will rise again and this week’s campaign aims to have a huge impact on raising awareness.

The future of family dispute resolution

It is worth noting at this point in 2014, during the third annual Family DR Week, that there has been a broadening of the DR horizon in the last few years and a movement expanding from the historic mediation centric option.  There is now in place strong and diverse alternatives to court litigation and the Resolution survey published at the start of this week has highlighted the huge impact of divorce on children; separating couples can now investigate the real options available to them in the knowledge that there are cogent choices to be made and real benefits to choosing a non-court route to resolving their dispute.

Suzanne Kingston is a partner in Withers' family team

 

 

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