The Benefits of Dialogue! - Family Mediation Week 16-20 January 2023
Mediation – a hurdle or missed opportunity?
National Family Mediation Week 16 – 20 January 2023
The Mediation option
At Lawson-West Solicitors, we recognise the importance of open, frank and constructive dialogue between parties in order to try to meet both client expectations and to try to reach amicable, fair and pragmatic settlements for parties who are either going through a divorce or are looking to sort out childcare arrangements.
One of the ways that this can be achieved is through the use of mediation and to highlight the importance of how mediation can be used to resolve disputes, a campaign for National Family Mediation Week is being run on 16-20 January 2023. The campaign seeks to raise awareness for the great benefits that mediation can offer to separating families.
The importance of mediation was addressed by Sir Andrew McFarlane, the President of the Family Division in a speech he delivered in October 2022 at Family Mediation Association Conference John Cornwall lecture 2022.
Sir Andrew McFarlane highlighted the need for a change of thinking when it comes to how family law is dealt with right at the very start of any conflict and the importance of considering whether mediation could help parties achieve their desired outcomes without having to use the assistance of the Court.
Delays at Family Law courts encourages Mediation
The Judicial system, as many are well aware, is encountering difficulties with the sheer number of ever increasing cases being dealt with by the Family Court system. Given this, mediation is now coming under renewed spotlight in order to see if this can help to ease the pressure on the Court system and assist parties in finding resolution without the Court`s intervention.
Currently, in order to make an application to Court for a private law children`s matter, parties must comply with attempting mediation, or fall within one of the listed exemptions before the Court will consider any application, but there is increasing concern that the MIAM exemptions (what is a MIAM?) are used too freely without basis or only brief attempts are made to mediate.
In the recent case of K v K [2022] EWCA Civ 468, the Judgement flagged the issue that ‘it is a matter of concern that a party can avoid the statutory MIAM requirement by simply asserting that a case is urgent and that they need a without notice hearing. Such assertions must be checked at or before the FHDRA under rule 3.10(1). They were not in this case. Had they been, it would have been clear that the case was not being dealt with as urgent and that the MIAM exemption did not in fact apply. For the statutory MIAM requirement to be effective, it must be enforced.’
Sir Andrew McFarlane is therefore calling upon all practitioners and the Judiciary to re-enforce the notion that mediation should be attempted fully, save for where an exemption truly applies or mediation does not succeed in finding a resolution, rather than it being “perceived simply as a “hurdle to jump” before getting to court, and not as a serious route to a sustainable solution in its own right”.
In his speech, Sir Andrew McFarlane also questioned “how well the term ‘mediation’ is understood by the parent in the street...(stating that he) suspects that for some it is confused with conciliation, and then reconciliation or even marriage guidance. It may sound, to parents who may be angry, hurt and heavily defended as altogether too soft an option for them at that time.
He went on further to state that the essence of “what mediation offers is a structured and safe environment in which those in dispute can discuss and hopefully resolve their problems. It is professional help with problem solving. If someone’s car breaks down, the advertising message is “Call the AA, the 3rd Emergency Service”. I feel that “Family Mediation” needs a strapline that sits, in bigger font, above the word “mediation” along the lines of “Need to resolve problems with your Ex? Don’t go to court, call FMA – we can help you both work out a way forward on your own terms.”
It remains to be seen whether mediation will simply remain to be seen as a hurdle to overcome or whether mediation can renew its` reputation to become a real game changer when it comes to family disputes; it is hoped that increased awareness for mediation and the benefits it can offer will help. This awareness includes the campaign running for National Mediation Week and the use of the £500 voucher scheme to assist in meeting mediation costs.
If you find yourself in a situation where you need compassionate, clear and informed advice about any divorce or private law children`s matter, please do not hesitate to contact one of the highly experienced solicitors in the Family Department at Lawson-West Solicitors on 0116 212 1000 or Contact Us.
Helpful links
Details of the £500 voucher scheme can be found at https://www.familymediationcouncil.org.uk/mediation-voucher-scheme/
Sir Andrew McFarlane’s full speech can be found at Speech by the President of the Family Division: Relaunching family mediation - Courts and Tribunals Judiciary
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