Over the past 10 years, family law practitioners have been using mediation in resolving disputes. But the emphasis has been and remains – mediation with knowledge and advice.
The existing practice is governed by numerous practice
directions, as well as the Solicitors Family Law Association good practice standards, which include the initial interview stage. And the first question that any new client asks is what their rights are, and where they stand. The initial interview will cover every aspect of the client's situation, including mediation, so that the client is aware of all of the options.
Effectively, the proposals in the White Paper are catching up with what is already in practice. 'Looking to the future – mediation and the ground for divorce' is the Government White Paper containing the proposals for divorce reform.
It has been so widely publicised that its main recommendations scarcely need repeating. Perhaps the most important of these is the proposed mandatory period of one year for “reflection and consideration” before the divorce can be made final. During this time the parties will be expected to put in place appropriate arrangements for their children and finances.
For those of us who are also mediators there should be much in this paper that we would welcome. For example, the Government's expressed wish to “save saveable marriages”.
The paper however proceeds on the basis that mediation is an appropriate and cost-effective alternative to the present “arm's length” negotiation involving lawyers. Unfortunately there seems to be little recognition in the paper that family lawyers are anything but an unnecessary evil. In fact, many family lawyers are also mediators who support the principle of negotiated settlements and always work towards achieving them, without wasting time or money.
Mediation should have a real impact on the practice of family law. Accepting the principle that decisions about children and finance come before final decree, mediators should be able to work hand in hand with lawyers so the whole case becomes a seamless process. The White Paper proposes that mediators will replace lawyers.
There may be some difficulties with this. For example:
l How can a mediator carry out his function without knowledge of the law?
l How can universal standards in mediation be applied in the absence of legal principles?
l How does a mediator know whether the parties have already reached an agreement which a court might regard as legally binding?
l How does a mediator deal with a non-disclosing spouse in financial mediation?
I would like to see a structure in place where each party first consults their solicitors as to the legal situation and the possible outcome. If the issue is a financial one, the solicitors should organise discovery and ensure that proper disclosure is given by both sides. They would have access to the courts for directions and enforcement – the White Paper does not deal with sanctions for non-disclosure.
Once the lawyers are satisfied that full disclosure has been given by both parties the case can then be handed over to the mediator who can steer them towards a sensible settlement. The case will then return to the lawyers who can draft a legally binding agreement to be put before a court. If the parties are unable to reach an agreement they should then be able to carry on with the consensus process by going to arbitration, so that they would then have the option of accepting a legally binding solution without having to go to court. The clients would know from the combination of mediation and arbitration the likely result.
This structure would have the advantage of greatly reducing the number of cases to be tried by judges and district judges.
Margaret Bennett is a solicitor specialising in family law.