The Ministry of Justice (MoJ) announced in November 2014 that separating couples would get their first mediation session funded for both parties, as long as one of them is eligible for legal aid. On the back of this move there is an argument that more needs to be done to encourage separating couples to pursue mediation.
Mediation is a non-adversarial process divorcing couples enter into voluntarily that is overseen by a trained mediator. It is not suitable in all divorce cases but has advantages over court proceedings such as being quicker and cheaper. Couples should note that it is not necessarily a substitute for legal advice itself but it is a way to communicate and manage the process of separation to a conclusion without the need for court proceedings. Most people that use mediation also receive independent legal advice from a family lawyer.
Are policy changes helping to encourage mediation?
The Law Society has claimed that the measures introduced by the MoJ will have a small effect because of strict eligibility rules. The Legal Aid Cuts in 2013 meant funding for separating couples and mediation was cut. Consequently, separating couples are increasingly representing themselves in court and this creates difficulties for individuals and the courts. Concerns have been raised that there is now a “two-tier” family justice system, with those people who can afford professional representation, and those who cannot and have no choice but to represent themselves.
The MoJ plans to introduce an accreditation scheme through the Family Mediation Council (FMC).This will be the third stage of its plans after introducing the compulsory Mediation Information and Assessment Meetings in April for couples regarding children and financial matters. The FMC will mean all mediators will have to work towards this accreditation and so separating couples can have confidence in their mediators. Commentators have suggested therefore that the MoJ is “signposting mediation”.
The merits of mediation
Mediation is on average a much quicker process for separation, with an average of 110 days. On the other hand, the average for non-mediated separations is about 450 days. Furthermore, mediation is described as “non-confrontational” and the decisions are sustainable due to the fact that separating couples have both agreed to enter the process. When proceeding through the courts the decisions are, by nature, adversarial and result in orders being given to separated couples.
In addition, mediation is much more suited to finding solutions for children as parents themselves are responsible for developing a parenting plan. Thus, the mediation process is described as “respectful and amicable”. The atmosphere for mediation also makes separating couples feel like they are treated equally and impartially. Professionals experienced in the mediation process note that importantly it is also less stressful than going to court.
The importance of legal advice
Despite the arguments in favour of mediation there remains a need for separating couples to seek independent legal advice as a compliment to mediation. One reason is that only legally trained mediators will have a comprehensive understanding of the law on benefits, tax, pensions, wills and property. Not all mediators are trained solicitors and even those that are cannot give legal advice to the parties.
When dealing with the most important issues such as financial matters couples should certainly seek legal advice from solicitors to fully understand their position. This will allow them to negotiate the best financial arrangement. At the end of the mediation process the couples are given a ‘memorandum of understanding’. Solicitors are usually involved at this stage before the memorandum is made into a legally binding agreement.
The MoJ has put an emphasis on encouraging people to use mediation and mediation has many merits. Divorcing couples should consider mediation where it may be appropriate but the process does not eliminate the need for legal advice. An expert family lawyer can advise you on the most suitable approach to your divorce and the different alternatives to court proceedings. For specialist advice contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.