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Mediation – a fix all?Posted on: April,28,2014
Mediation is very much a buzz word in family disputes at present. The family protocol says mediation should be attempted before any application is made to court in relation to any family proceedings relating to children disputes or financial disputes. The theory to mediation is very positive; it can be cheaper, quicker and far less adversarial than the court system. The government is due to enact a new law that requires virtually all family matters to proceed to mediation first, however is it really working and can it work for all people and all circumstances?
Mediation is based on a wish to resolve the dispute. It requires that the mediator is sufficiently skilled to deal with the people and the legal framework involved in the dispute. This is sadly not always the case. We are blessed on the Isle of Wight in that we have two solicitor mediators who are highly experienced, however, even they would agree, I am sure, that not every dispute is capable of resolution by way of mediation.
The downsides to mediation are obvious; it is open to abuse from those seeking to delay matters, it is not free from cost to the majority of those who seek to use it, matters of fact cannot be resolved, and it leads only to agreements and not enforceable court orders. This says no more of the agreements, or potential agreements, when using a mediator who is out of their depth either in dealing with the sort of people involved or the sort of law involved. Some agreements will fail almost instantly because parties were pressured to make “an agreement” rather than one that will work.
Some times, and in my experience many times, the court and the use of lawyers is needed. Lawyers are able to offer legal advice (which a mediator cannot), we can advise on likelihood of success (which a mediator cannot), we can argue a position to a judge to seek to establish a fact on which proceedings are then based (which a mediator cannot), we can obtain an order of the court which is then enforceable (which a mediator cannot). Lawyers in the majority of cases will resolve disputes without the need for the use of the court at all. Once a client is aware of what a court is likely to do in their case a resolution is usually obvious.
There are many upsides and downsides to mediation. There is no means, in my view, of being able to refer all matters involving persons of all types to mediation expecting successful outcomes. The majority of disputes can be simply resolved by the parties themselves discussing the issues once they have been advised as to their legal position. After those matters, there are a number for which mediation will assist and others that it will not assist. Strangely enough in certain cases I have dealt with, specific and discreet issues have been readily resolved at mediation whilst other issues within the same case have needed the court to decide. This mixed approach has worked very well on occasion.
In all, whilst it seems the government is very keen on mediation in order to lower the cost to the public purse of running a justice system, it must be borne in mind that there is still very much a place for a court of law and for “simple” resolution of matters without the need even for mediation. Mediation can work however in my view this must be in conjunction with good legal advice and an intention to resolve. Without those two elements I would not expect a successful outcome at all.