Getting court out of divorces

Bob Geldof and Paula Yates could have done with it, Mick Jagger and Jerry Hall could well be needing it soon – but the odds are none of them have ever considered it.

Few divorcing couples consider mediation as an alternative to litigation, though changes in family and matrimonial law are seeking to alter that. The provisions of the Family Law Act 1996 come on stream by the end of the century, by which time the court system will be playing a more active role in encouraging couples to use ADR mediation.

Original proposals by the Lord Chancellor's Department, which critics claimed would wrongly impose mediation on reluctant disputing parties, have been weakened. Nigel Shepherd, chair of the Solicitors Family Law Association (SFLA) and partner at Lace Mawer, says the legislation is now more neutral. It encourages couples to adopt mediation under proposals designed to avoid unnecessary expense for the Legal Aid Board and the courts as much as for estranged couples.

“The Family Law Act is far less coercive than it was,” says Shepherd. But changes in the law mean that “mediation is something which will be more widely used – and it's a good thing too when appropriate.”

The SFLA has long advocated the increased use of mediation so long as the procedures deal with “power imbalances” in the relationship, and so long as parties can maintain and afford access to independent legal advice as mediation proceeds.

All eyes now are on the outcome of pilot schemes planned by the Legal Aid Board to test the effectiveness of mediation. They will shape the implementation of court-sanctioned mediation programmes across the country by 1999. “These schemes will give mediation a higher profile,” says Shepherd.

Raising the profile of mediation is certainly important. While court welfare officers are increasingly encouraging partners to reach early agreement on children's welfare following separation, “all-issues” mediation remains the exception. According to Elizabeth Lawson QC, chair of the Family Bar Association, exact figures of how often mediation is used in the field are difficult to come by. “But the percentage of people using mediation compared to the people getting divorced is very small,” she says.

Mediation organisers in the field report their services are often under-employed. Yet if mediation is to become the norm rather than the exception, many more trained mediators will be required. “Everyone involved is concerned that when the Family Law Act is implemented that there should be enough high calibre mediators to deal with the volume of work created,” Lawson says.

The Family Mediators Association, which typically offers a co-mediation service including trained lawyers and professionals from a therapeutic background, agrees current demand for mediation is geographically patchy. The association's director, Ruth Hindley, says: “There are parts of the country where there is no take-up of mediation.” But she adds: “We want to see what comes out of the LAB pilot schemes. At the moment, there isn't the work around for trained mediators. It's in limbo – but we have to prepare for the future.”

Shepherd says it is large cities and areas containing large numbers of the “middle-class, white, gossiping classes” that tend to be centres of demand for matrimonial mediation and it is often conducted quickly, economically, and in a reasonably civilised way. He says it will be interesting to see if similar success rates can be maintained as large volumes of couples who previously would not have sought mediation are dealt with in the pilot scheme.

“The key is funding. Mediation is not necessarily cheap,” he says. “People currently using it tend to be articulate, so its success may be rather different in the pilot schemes.”

When mediation is successful, everyone wins – including the taxpayer – but there is a question mark hanging over its cost. If there is a typical case, says Hindley, it would involve a couple in between three to six sessions with mediators, at a cost of around £500-£600 per partner.

The SFLA, which is launching training schemes for professionals interested in entering the field, wants to see fly-by-night mediation outfits discouraged from entering a burgeoning field under the planned new regime. Shepherd is concerned that there are no clear guidelines governing which organisations or individuals may act as mediators under the Family Law Act. If mediation does take off, the current number of under-employed mediators will need to be supplemented by a new generation.

The new market could be huge. Shepherd says that mediation my be possible in 40 per cent of disputes if implementation of the mediation programme is properly funded.

But he adds: “The danger is that legal aid restrictions mean people who need legal support may not get it.”