Divorcing Couples Must Try Mediation First Before Court


From 6th April 2011 divorcing couples who cannot agree on how to share assets or custody of their children will have to attend a mediation meeting before going to court. Fraser Dawbarns family lawyer, Rebecca Woodley, looks at the background to this change and explains why it may reduce access to justice.

The Court process is slow and expensive and often leads to a result that neither partner is happy with. Mediation is a form of Alternative Dispute Resolution and involves the husband and wife meeting with an independent person to reach their own decision.

If divorcing parents with children take a case to court then it can have a very damaging effect on their relationship and directly harm the children. If children are young the parents may face the next 10-15 years still having to co-operate and make joint decisions for the children. Some families never recover from the fallout of a court application and the children continue to suffer throughout their childhood as a result.

In the case of legal aid funding couples are already required to attempt mediation but if one party refuses to attend then mediation is deemed not suitable; you cannot mediate on your own!

A mediator will listen to what each person wants to achieve and then look for a solution that attempts to meet both of their expectations. This can lead to an outcome that professional advisors such as Lawyers may not have considered. I have been surprised by the successful outcome of some mediation sessions where before the first meeting the divorcing couple cannot even agree what day of the week it is!

If one person is in a more powerful position than the other mediation may lead to an unfair solution. It is important during mediation for both parties to obtain independent legal advice to ensure their interests are fully protected and any agreed outcome is fair.

Not all couples seeking divorce will need to go to mediation. One of the exceptions will be domestic violence where there is clearly an imbalance of power between the parties. Unfortunately, the exception has been narrowly defined which will mean some cases with a power imbalance going before a mediator. In these cases it is even more important that the parties take independent legal advice.

Government is also proposing to remove Legal Aid from the vast majority of cases dealing with disputes between couples and/or parents. If they do parties may well end up mediating without the benefit of legal advice and this could lead to unfair outcomes.

Getting divorcing couples to try mediation could be very beneficial and reduce the amount of cases that proceed to Court and produce positive outcomes for the children of separating parents. However, if the government’s proposed changes to legal aid funding are approved there will be a fundamental impact on access to justice. Those who can afford it will have the best advice and those who cannot may end up agreeing to something that is not right for them or the children

If you would like to discuss mediation or any other family legal matter contact Rebecca Woodley on 01366 318818 or email rebeccawoodley@fraserdawbarns.com