Ok. So it makes sense. The family courts are clogged up and it’s arguably cheaper, quicker and better all round if divorcing couples attempt to mediate their disputes before heading off to the courts. Yesterday, the Justice Minister endorsed the Governments plans for compulsory mediation which could become effective some time next year.
Mediation has been around for some time now yet it’s still not the first option for divorcing couples. This could be for several reasons. Maybe many couples, struggling to shoulder the blanket of emotions, tensions, anxieties and fears, simply cannot face sitting around a table (either together or in separate rooms depending on the mediation model) with a mediator in an effort to sort things out. In an ideal world of course, the divorcing population could manage that. But that’s not real life.
Also maybe there is not enough information out there about what mediation is (and isn’t). Everyone knows what going to court means. It means big, it means scary and the expectation is finality because a Judge’s job is to make a decision. A mediator doesn’t do that. She/he helps the couple make a decision. So maybe some public information work needs to be done.
Another issue is whether there enough mediators out there to do all this work? As the growth in family mediation has been slow, it must follow that the pool of experienced mediators is small. However, working on the basis these proposals will be introduced, it’s very likely that this small pool will soon be awash with new swimmers fighting for mediation training.
Years ago, as a lawyer, I attended ‘conciliation’ appointments with my family clients in children-related disputes. These appointments took place just before the first court appointment with lawyers present. The lawyers generally kept quiet (not always an easy task for a lawyer) and allowed the ‘conciliator’ to help the parties find agreement. Sometimes it would end in carnage but more often, it was a brilliant way to narrow down issues and sort out detail like; where little Johnnie would be picked up from and when, who would give him tea, whether he could stay at Grandma’s or even meet the new girlfriend (which was always a good one to liven things up).
Like conciliation, mediation could play an important role in sorting out all the stuff that should be kept away from the far too busy courts. An issue that bothered me in the past was that of the child’s voice. In court proceedings, children have a say in what happens to them, where they live, who they see and how etc. In conciliation, if an agreement was reached, it was a bit of an ‘end of’ situation. The parents went away, the agreement happened and the child, who should have been at the centre of the case, had no say. Where a child was young, this was understandable. Likewise, where you had a 14 or 15 year old, if she/he didn’t like an agreement, generally it wouldn’t have worked. But those children in the middle didn’t have much of a role. Thankfully things have moved on. In mediation now, children can be invited, in various different ways, to have their say in what happens. Hopefully this crucial aspect of the process will not be lost if and when these proposals do become law.