Family mediation needs more support from government

Monday 25 November 2013 marked the beginning of Resolution's Family Dispute Resolution Week, an initiative aimed at raising awareness of the alternatives to going to court for separating couples and their families.

Ironically the previous working day had seen the nadir in the six-and-a-half-year litigation between Michelle and Scot Young with the final judgment of Mr Justice Moor. During that time, Mrs Young had spent an estimated £6.4m in legal costs; there had been 65 preliminary hearings taking 20 days of court time; and Scot Young had twice been found to be in contempt of court and had been sentenced to a six months' prison term for repeatedly refusing to provide full disclosure of his financial position.

Michelle Young sought an award of £400m. Scot Young maintained he had no assets, just debts of £28m. Mr Justice Moor concluded that Scot Young had had assets worth £40m in 2006 but even he had to concede that he had no idea what had happened to those assets in the following seven years. He ordered that Michelle Young should receive £20m, although the tenor of the judgment suggests that, being sanguine, he doubts if she will ever receive very much, if anything.

Bad example

This litigation was described by the judge as 'about as bad an example of how not to litigate as any I have ever encountered' and raises the question about what has happened over recent years to mediation '“ and could it have saved the Young family from the disaster they have lived through?

Mediation has been on the scene since the 1970s, but it is still not seen as a mainstream 'alternative' dispute resolution method, suitable just for the minority. We need to drop the use of that word 'alternative' and think about 'appropriate dispute resolution'. We need as lawyers, and family lawyers in particular, to ask ourselves in every case what is the most 'appropriate' way of helping our clients resolve their problems. Litigation is just one method and should always be the last resort.

Between the various protocols, practice codes and family procedure rules, you might think there is enough encouragement in favour of mediation already.

Mediation needs to be embedded in our legal culture from the outset. We teach young lawyers to litigate. We do not teach them how to mediate or to collaborate. That only comes later by which time litigation is embedded.

Game for five

Lawyers and mediators can work together well as part of a team to help a family find a way forward. That process has been described as a 'game for five': the couple, their lawyers and the mediator. Even after all these years there is still tension between some lawyers and mediators, each vying to be the first port of call and seeing the other as a rival.