Mediation is a way of resolving disputes by discussing the issues with the other party, and with the help of a mediator. The mediator is trained to assist in identifying the issues between parties, and smoothly find a solution. An agreement reached in mediation is not binding, so the process does require commitment from both parties. We would always recommend for both parties to seek legal advice throughout the process.

For some time now, mediation has been a pre-requisite for most cases seeking Legal Aid funding for court proceedings. We say most, because there will always be cases for which mediation is inappropriate, such as a case in which there has been domestic violence, or where the parties’ bargaining positions are greatly imbalanced.

Mediation is frequently an excellent option, and one which we advocate to most of our clients. If a client is well-informed and a solicitor is family and child focused, then mediation as an option should arise naturally. Getting parties talking, in most cases, has to be a good thing.

The government has recently announced that it wants all parties to have attempted mediation before they consider court proceedings. Court proceedings are often expensive, personally and financially, for all involved. Court proceedings do not always produce either the best, or even the most common-sense outcome. By and large, in our experience, most applicants (especially the privately paying) do not apply to court without careful, measured, forethought. Generally, by the time proceedings are issued, all other avenues, including mediation, have been exhausted.

The court process in financial proceedings is already heavily geared towards encouraging parties to negotiate and settle if at all possible, even involving the judge in the negotiation process. This is an excellent aspect to proceedings, which generally enables cases to avoid a costly and stressful trial.

We feel that parties are likely to be happier with a settlement, the terms of which they have helped to forge, rather than an order made by the court which has been imposed upon them often against their wishes. A party may therefore be happier to abide by the terms of an agreement reached in mediation. Communication with the other party will often have been opened or improved hopefully reducing the possibility of conflict in the future with the parties more willing to talk rather than resort to court.

But there are also those for whom mediation is merely an opportunity to delay matters or a necessary step they must go through before they can obtain the funding they want to take the other party to court. There are also those for whom, we are sorry to say, court proceedings offer a further opportunity to inconvenience or even intimidate the other party.

It is at risk of becoming another tick-box for some. But in the context of court proceedings, mediation can work very well indeed. Perhaps the advancing of mediation could be promoted in the context of Cafcass-mediators at court, and similar financially trained mediators in the same context, to add some weight to the process and avoid it becoming another hoop through which to jump.

If the government’s goal is pursued, at the least we hope that the referrals and assessment processes will be swift, with appropriately prompt scheduling of appointments. 

Tanya Foster

Townsend Family Law Solicitors

See Tanya’s Top Tip No. 7 regarding the use of mediation to reduce your legal costs or click here for the Family Mediation Helpline website. 

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