Mediation needs legal protection

The use of mediation (or alternate dispute resolution) is becoming prevalent in many fields of legal work, and none more than in Family Law.

For many years, all clients that wanted to take advantage of the Legal Aid scheme had to attempt to engage the other party in mediation to try to resolve their difficulties, before they could apply for legal aid.

Since April 2011, the requirement for a mediation referral has been extended, and now it is not possible to apply to the court for a family order, (apart from a decree of divorce) without having attended a Mediation Information and Assessment Meeting (known as a MAIM).

Mediation isn’t suitable for all though and there may be very good reasons why it shouldn’t be attempted.

The question is why is the government so keen on it?

They were clearly concerned that our courts were being clogged up with a huge volume of contested cases. Also, from April 2013, legal aid will no longer be available for the vast majority of family cases (unless there are violence issues, or in certain limited children cases), and there is a real risk therefore that people will “go it alone” to save costs.
The government believes that mediated agreements are (particularly with regard to children) far more likely to succeed long term; that clients are empowered by resolving their own issues, without lawyers or the courts. This can, indeed, be true.

However, most family lawyers would state that there is still a definite place for the courts and lawyers. Mediation only ever results in a “without prejudice” agreement. Usually, (particularly regarding finances) the only way an agreement is binding is if it is made into a court order. A mediator cannot also advise you as to your entitlements, or what is in your best interests. Only an experienced family solicitor can. Often mediation therefore runs side by side with legal advice.

So, I believe that there is a place for lawyers, courts and mediators, and that, through proper use of all three, you can get the best possible outcome for you. 

Alexandra Fowler
Partner
Dickinson Parker Hill