Family Law blogger John Bolch discusses compulsory mediation - and ponders the pros and cons regarding cases and 'having your day in court'...
OK, I don’t expect any sympathy for lawyers, but hear me out.
Compulsory family mediation..
On the 23rd March the government announced plans to introduce compulsory mediation for most family law disputes, specifically “all suitable low-level family court cases excluding those which include allegations or a history of domestic violence.”
The announcement was not unexpected. In fact, the suggestion of making mediation compulsory has been bandied about by the government for years, ever since it became clear that couples who were denied legal aid by government cuts in 2013 were not flocking to mediation, as the government had hoped.
The government sells compulsory mediation on the basis that it could protect thousands of children from “witnessing their parents thrash out family disputes through the courts.”
The real rationale behind the move is of course to save yet more money on the courts system. And the idea that it will relieve pressure on the courts is laughable, when we all know that reduced numbers using the courts will be used as an excuse to close even more courts.
Whatever, it seems that compulsory mediation is coming. The government has launched a consultation on the plans, but is clearly determined not to let any petty objections get in the way of its latest grand scheme to take the justice out of the justice system.
Compulsory mediation. I have always felt that the expression is somewhat a contradiction in terms. After all, mediation is all about trying to reach an agreement. And by definition an agreement is something entered into voluntarily, isn’t it?
Anyhow, the plans have unsurprisingly met with a rather lukewarm reception from the legal profession. The Law Society said that what is really needed is early legal advice for all, not just those who can afford it. And Resolution, the association of family lawyers, pointed out that mediation is not suitable for all cases.
And one legal journal pointed out that compulsory mediation will reduce demand for law firms. Surely it is obvious: more cases settled without going to court means less work for lawyers, doesn’t it?
Well, yes, but how successful will compulsory mediation be? And won’t it also provide opportunities for lawyers?
Mediation is not of course a guarantee that the case will be settled..
The latest statistics published by the Ministry of Justice and the Legal Aid Agency indicated that about 59% of mediation starts resulted in successful agreements. And it must be remembered that in those cases the parties entered into mediation voluntarily – the success rate could be far lower for forced mediation. As Resolution pointed out, mediation works best when it is done voluntarily.
There will still be plenty of work available for lawyers.
And what about those who do not wish to mediate? It has already been predictably predicted that more people will claim that their case is not suitable for mediation because of domestic abuse.
And if neither party wishes to mediate we could have the farce of them both being forced to go to mediation and refusing to cooperate. Yes, under the government plans the court in any subsequent proceedings will be able to penalise them with costs orders, but you can hardly order both parties to pay the other’s costs.
Like it or not, many family litigants still want their “day in court”.
But compulsory mediation also brings with it an opportunity.
As the government itself estimates, compulsory mediation would result in an extra 25,000 mediations a year.
Clearly, a lot more mediators will be needed.
Many (most?) family mediators are lawyers anyway. A mediator can’t advise the parties on the law, but a substantial legal knowledge is obviously required, putting lawyers in prime position to fill the shortfall.
And in any event many of those wishing to avoid mediation will be rushing to their lawyers for advice as to how they might do just that.
Whatever, lawyers are a resilient and resourceful bunch. I’m sure that they will find ways to survive.
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