In his latest exclusive, family law blogger John Bolch examines mediation past, present and what the future holds. We know - attending the most recent Resolution event - that this is a hot topic among family law professionals, and championed by Sir Andrew McFarlane, President of the Family Division.
Setting the scene...
Over my sixteen-plus years (so far) as a blogger I think I acquired a bit of a reputation of a ‘mediation hater’, but that is actually far from the case.
It is true that I have sometimes recalled that when I was practising my clients’ experience of mediation was, shall we say, sub-optimal, and that I have from time to time repeated the truism that mediation is not the panacea that some seem to claim it is.
However, way back in the nineties I was actually one of the first tranche of solicitors to jump on the mediation bandwagon, after the early pioneers. I was enthusiastic about adding mediation to my skillset, and signed up for one of the first mediation training courses designed specifically for family lawyers.
In the event I did not go through with the training, but that was not because I had gone off of the idea of mediation, rather that I had realised that the potential financial rewards did not justify the quite substantial investment involved in training, both in terms of cost and time. The take-up of mediation at that time just wasn’t high enough.
I say all of this to make clear that what follows is not intended to be ‘mediation bashing’, but rather a realistic look at the history of family mediation in this country.
A brief renaissance
The low initial take-up of mediation amongst those involved in family disputes did of course subsequently change, and for a time mediation flourished. But that renaissance was not to last, and in recent years the road that mediation has travelled has been both rocky and downward-sloping.
From the slow beginnings mediation gradually became more popular as a method of resolving family disputes, throughout the noughties and into the following decade (whose name, if it has one, escapes me – the “terrible teens”, perhaps?).
Before proceeding to look at the statistics, I should explain for the uninitiated how mediation is measured. There are essentially three metrics: MIAMs, starts and agreements.
‘So what exactly is a MIAMs?
MIAMs’ is short for Mediation Information and Assessment Meetings, which are initial meetings between one or both parties and a mediator, to see if family mediation could be used to reach agreement without using the courts.
MIAMs have been around for a while, but since 2014 most people who want to make an application to the Family Court are supposed to show that they have attended a MIAM before they can apply for a court order (I say ‘supposed’, as the rule is more honoured in the breach than the observance).
Mediation starts are when the couple have agreed to refer their dispute to mediation (at present mediation is purely voluntary, more of which in a moment), and the mediation process has begun.
Lastly, ‘agreements’ refers to agreements reached in mediation. And this is an important point to remember about mediation: there is no guarantee that it will result in an agreement – sometimes mediation fails, and the matter has to be resolved through the courts after all.
OK, so to some figures, all of which are quarterly, as the statistics are published on that basis.
By 2012 family mediation had perhaps reached its zenith. MIAMs were running at about 8,000 per quarter, mediation starts at about 4,000 per quarter, and mediated agreements at about 2,500 per quarter.
But then everything changed...
The Government, in its infinite wisdom, decided to abolish legal aid for most private law family law matters (i.e. matters not involving social services), from April 2013.
But that was alright – all those people who couldn’t afford legal representation could have their disputes resolved via mediation.
Couldn’t they?
Well, no. Imbecilic Government is not just a feature of today. What had been forgotten was that the vast majority of mediation cases were referred to mediation by lawyers. But without legal aid people could no longer see a lawyer. No lawyer = no lawyer’s referral.
As a certain cartoon character might say: D’oh.
And sure enough, the mediation ship immediately began to sink. Or to use another stretched metaphor, MIAMs, starts and agreements fell off a cliff. The latest statistics show MIAMs running at about 3,000 a quarter, starts at about 2,000 a quarter, and agreements at just around 1,000 a quarter.
Wonderful.
A new beginning?
But all is not lost. The President of the Family Division, no less, is riding to the rescue.
In a recent speech to the Family Mediation Association Conference he spoke of what he called ‘relaunching family mediation’.
Mediation is all about agreement...
I won’t go into the details of how he expects family mediation to take flight again, but one of the major factors fuelling it is a Government initiative to increase the use of mediation, possibly by the use of incentives, or penalties for failure to engage with the mediation process.
Let us just hope that it is rather better thought out than previous Government initiatives…
The President also spoke of the possibility of making mediation compulsory, a thought that may be clanking around in the brilliant minds of our lords and masters in Westminster.
For my part I have always been one of those who consider ‘compulsory mediation’ to be something of an oxymoron. Mediation is all about agreement – how can anyone be forced into a process that has agreement as its aim?
But then, what do I know?...
For his part, the President does not seem that enthusiastic about compulsory mediation save, perhaps, to extend the requirement to attend a MIAM to both parties, not just the applicant for an order.
Of course, the President spoke of many other things, not just what might be in the minds of Government. What it all boils down to, I think, is a general drive to keep as many family disputes out of court as possible by any means, not just mediation, both to ease the burden on the courts and because court is often not the most appropriate forum to resolve a family dispute.
Whether all of this will be sufficient to cause a miraculous rebirth of family mediation, only time will tell.
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