The history of family mediation in the UK

Familu Mediation – rooted in history

In the legal world it is easy to believe that mediation is a new form of conflict resolution, however such couldn’t be any further from the truth. The technique of mediation dates back thousands of years and is in fact deep rooted in ancient times. With such historical roots, it is no surprise that it remains a primary form of conflict resolution in Eastern and Western cultures. In fact, countries such as Japan and China still utilise the technique on a national scale. Mediation stands as a common alternative to court proceedings with regards to family law. However, the field is not without its critics, especially in the United Kingdom (UK), where its effectiveness has been regularly debated.

Family mediation in the United Kingdom

In the UK mediation has its strongest association with family law. The reason being that the Government planned to utilise the technique in an effort to stop divorce proceedings racking up costly court fees. The initial idea was that family mediation would help curb the tradition of court-based divorces, while reducing the monetary and emotional issues that stem from dragged out divorce proceedings.

Even though the thought was there, it can be argued that the Government were overly optimistic on the impact that mediation would have in the UK. It has never really translated into the form of divorce resolution that it was meant to be. The plan was that it would help reduce the need for court action via the 1996 Family Law Act, however it has failed to deter people from taking the costly court route in getting divorced. The reasons surrounding the inability for mediation to gain momentum in the UK included the following:

  •  It never appeared to have the flexibility that it should have had, often appearing rigid and unaccommodating. Some labelled mediation meetings as a one-size-fits-all process, which never really took into consideration that each divorce varies greatly in size and situation.
  • The limited numbers that actually opted for mediation didn’t give the process glowing reviews. This hindered its creditability from day one, with the range of opinions about the service becoming widely known:
  •  Just how necessary mediation is was regularly asked, as little was rarely done to actually conclude or even lead to an agreement between spouses.
  •  It wasn’t initially considered mandatory to attend, meaning that some meetings never even occurred as scheduled. Even when it did become mandatory, couples that attended made little to no effort to participate.
  •  Trust is always an issue when it comes to divorcing spouses, so what was stated during the mediation wasn’t always taken seriously, sometimes resulting in a stalemate.
  •  Court based divorce options are considered traditional in the UK, with mediation finding it hard to shake off the alternative tag.

The numbers opting for mediation were quite low, with only around 8000 taking part in information meetings. Only 10% of those chose mediation as a way to resolve divorce disputes and only 10% of that admitting that it helped resolve their issues. Even some of those admitted that they still needed legal input to reach an agreement. Mediation in some regards was doomed to fail in its early days; lack of information and poor organisation meant that it would never get off on the right foot.

Family Mediation- Failure to launch

The Government wasn’t shy in giving reasons as to why mediation wasn’t well received, but research proved to be the telling factor. It was too easily confused with marriage counselling and reconciliation, thus putting people off from agreeing to get involved. Other reasons listed were:

• The divorce at hand was too complex to resolve in a mediation environment.

• Not all parties were willing to attend mediation appointments.

• There was a lack of issues to actually mediate, especially when there was good communication between spouses in spite of the divorce.

• Certain spouses believed that the only way to protect their possessions during a divorce was with legal protection, effectively nullifying any talks that did take place.

Initially mediation meetings were a publicly funded legal aid, they were considered a precursor to any further divorce action and were mandatory should a couple want to claim further financial support. There were several exemptions to this rule. Those who couldn’t attend mediation due to a lack of available mediators, along with those involved in a divorce based upon domestic violence were allowed to bypass mediation.

Family Mediation – forcing a rethink

The push for the use of mediation in family law was relentless by the British Government during the 1990s. However, by the close of the decade they were forced into a rethink things due to the repeal of several parts of the Family Law Act. These developments were the last thing the Government envisioned, with the following issues being most prominent:

Mediator availability There just weren’t enough mediators available and there weren’t enough on hand when mediation was being encouraged. It didn’t help that the Law Society’s family mediation accreditation scheme wasn’t implemented until 2000 either.
Too much work The mediators who were in place simply couldn’t handle the amount of work coming in. They were snowed under at times, with many being unhappy at the fact that they had to mediate couples that had no interest in the process.
Battling the critics Mediation on a whole had been so heavily criticised up to that point, rather than work with process solicitors used it as a means to push people further towards a court based solution. This made the mandatory process somewhat redundant and it simply came across as a precursor to traditional divorce proceedings.
Lack of progress The process came across as not very progressive and didn’t do a great deal to help resolve important issues. Records show that less than a third of the couples who did participate managed to make agreements over crucial points such as children and money.

The compulsory element was considered to be the Governments initial masterstroke, yet in hindsight it probably did more harm than good. It simply served as a motion that a couple had to go through before heading to a traditional court settled divorce.

The next step

In the eyes of the Government the fact that they were unable to integrate mediation into family law made it a failure. In the early days of the scheme there was a mass of mediators ready to get to work, however as the system faltered many of these mediators were left twiddling their thumbs. Mediation firms were left scrambling for cases and many went out of business as a result. However, it wasn’t all bad news, as many well-reviewed mediators persevered in what was trying times for the field. They were able to capitalise on what little business there was and carry that momentum in the 21st century, where mediation has become a more respected form of family law conflict resolution.

Mediation didn’t really take off as it should have done in the 1990s, that itself is undeniable, but the few who did use it showed that there was a market for it. Those who emerged from the decade having handled mediation were considered a new breed of solicitor, one that embraced divorce proceedings but felt no urge or requirement to spend day after day in a courtroom.

Collaborative law arrived in the early 2000s and was seen as another form of alternative court settlement procedure, which would either rival or surpass mediation. Everyone seemed to believe that it would take work away from the already small pool of mediators. However, since its inception it is clear that there is little competition between the two, as they both lend themselves to different divorce situations.

The future for Family Mediators

During 2013 the Children and Families Bill made its way Westminster, which has helped further the mandatory nature of family mediation. Before heading to an expensive hearings in court, divorcing couples will need to attend a ‘Mediation information and assessment meeting’ (MIAM) or at minimum provides valid reasons as to why they should be exempt from such. It will be another attempt to tell the public that getting divorced in traditional court orchestrated proceedings is not the only way to go, mediation should be considered a realistic and viable alternative.

The future of mediation is always something that has a question mark hanging over it, but for once there is a lot of positivity surrounding the field. What will be interesting to see is how that positivity translates to use, as with the arrival of the Australian model and the effects of the Directive of the European Parliament and of the European Council of 21 May 2008 on Certain Aspects Of Mediation In Civil And Commercial Matters (2008/52) soon to be felt, couples will have no shortage of divorce options to choose from.

It is possible to argue that family mediation was misunderstood in the grand scheme of things back in the 1990s. It never quite got out the blocks at a time when it was needed most, however things have changed. It has now established a small yet growing field of dedicated mediators, which have worked hard to push past the initial criticisms to provide a quality service. The field has experienced a full U-turn and after 20 years of work is now a viable option for those looking towards divorce.

For an experienced Family Mediator to help you? Contact us today

Here at Bonallack and Bishop, we are big fans of family mediation – which really does make the whole process of divorce quicker, easier and less expensive and less acrimonious – but sadly doesn’t suit everybody. However, if you think you’re right for family mediation, make sure you contact one of our family mediators

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