Mediation for separating couples: compassion not compulsion

It was surprising to learn last year that the current UK government sought to consider forcing separating couples into mediation. This would have gone far beyond the current requirement for an individual about to issue a court application to only have to consider mediation as an option, by attending a Mediation Information Assessment Meeting (MIAM). It was therefore a relief to many practitioners when it was announced that these far-reaching plans had been dropped, particularly when one considers that at the core of mediation is the principle that both parties must come to the table voluntarily. As soon as compulsion is introduced to that process, it removes the voluntary element that underpins the purpose and ultimately success of mediation. The plans would have seen separating couples either mediating just for the sake of it, to “tick the right boxes”, or to do it for all the wrong reasons.

There are many reasons why mediation may not be right for every dispute and all separating couples – an obvious example of when not to mediate would be to protect vulnerable parties and victims of domestic and other abuse, as is the current position anyway. There is also the need to consider the critical aspect of timing – when is mediation appropriate to use in each individual case? There is no doubt that entering mediation at the optimum time yields the best chances of success. For example, in a financial dispute – here the parties have typically, in the author’s personal experience, already embarked on a thorough exchange of financial disclosure, and have had the opportunity to take individual legal advice on that disclosure. An understanding of their own entitlement and options means that they can negotiate in an informed manner and make the best use of the mediation process by listening to what is important to the other party, which in turn can inform them how to then pitch their own proposals. Mediation is the perfect toolkit to a separating couple if used appropriately and at the right juncture. Conversely, it can be a terrible disaster if it is forced on a party, particularly at the wrong time.

A mediation voucher scheme to help assist separating couples with children disputes was launched during the pandemic to help ease the demand on the family courts. It offered all families, regardless of means, a one-off contribution of £500 per family towards their mediation costs. However, this could only be used with accredited mediators, and only in cases where the dispute related to a child. There is also only a finite number of the vouchers available – they will run out, if they have not already. This certainly incentivised more parties with children disputes to at least try mediation as it eradicated the initial uncertainty in the cost of the first session. They could “give it a go” for free.

However, even the voucher scheme is not without its faults. The parties must still first fund their own individual sessions (the MIAM). £500 does not go very far either, particularly with central London mediators and VAT on top, and considering that sessions are rarely under 90 minutes long.

There are many excellent family mediators that are not yet accredited. Accreditation is a very tough process, requiring successful mediation, i.e. the parties reaching full "agreement", in three to four different all-issue cases (money and children matters) over a period of around two years, following completion of mediation training. There are exceptions to extend this – maternity leave, for example. Those seeking accreditation must also complete an extensive portfolio of work including a thorough written assessment and must be supervised directly by their Professional Practice Consultant, when conducting a mediation. The very thought of the latter is nerve-wracking in itself and requires both mediation clients to consent to being observed – something that is not often freely given. There are many excellent mediators who are not accredited, but should be able to offer and accept the mediation scheme but are unable to. Non-accredited mediators may arguably also be less likely to inform clients of the voucher scheme (though they should be doing this) if they are going to lose that client to an accredited mediator.

If the government wishes to ensure the effective use of mediation as a means of reducing the burden on the current court system, then they should extend the voucher scheme more widely. They should open it up to a wider class of mediators, not just accredited mediators, but mediators with experience and those that are working towards accreditation. It should also be extended to all family related disputes, not just those involving a child. Disputes involving money or property issues often see great benefits from mediation, including unmarried parties property claims, where the legal costs consequences can be so severe under the Civil Procedure Rules that mediation must be considered throughout as a better alternative to litigation.

Furthermore, the scheme should cover the entire first 90 minute session with a mediator, even if this exceeds the £500 current limit. All separating couples could then truly "try before they buy" and be enticed into the benefits of mediation early on. The voucher scheme needs advertising more clearly and the general public need to be made aware of it. The merits of resolving a case holistically and with the assistance of a specially trained third party mediator should be stark, particularly when compared to the alternatives of often prolonged correspondence with solicitors , in conjunction with the delays of not being directly confronted with the other party.

A major factor as to why there is a reasonably low take up of mediation in cases is that the general public are not educated about what it really means and how it works. Even some family law professionals are not entirely sure what mediation means and how it works in practice – it is quite hard to sell a service if you do not fully understand what it is and have not seen it in practice. Us mediator’s are the biggest advocates of mediation as we know it can and does work and how it works.

Raising awareness of mediation among the general public is key to its success and take up. This includes educating separating couples about all the various ways mediation can take place. Aside from traditional mediation, parties can opt for shuttle mediation, whereby they are not required to be in the same room as each other, or hybrid mediation, which brings in third party professionals such as accountants, valuers, social workers and or the parties’ lawyers. In certain more limited cases child inclusive mediation is an option too, so that the child or children can be directly heard and considered in the process.

Mediation can even be conducted online – this works particularly well for international clients and those who just do not want to be in the same room or anywhere near the other person, but are still happy to try mediation. While video conferencing can be excellent for this, working well with the addition of break out rooms, in person mediation has many benefits too that can potentially be lost in the ether.

Generally, there is no one size fits all approach with mediation. The more we can explain the bespoke nature of mediation and how it can be used in each individual dispute the better the take up will be. The government considering these other options to widen the net is certainly better than trying to force people into a dispute resolution method – which by its very nature is the antithesis to mediation.

Jessica Reid is a partner and mediator at Dawson Cornwell LLP