Mediation is neither capitulation nor reconciliation!

Mediation is neither capitulation nor reconciliation!

Mediation is one of the primary ways of resolving family disputes out of court. Last year over 5,000 family cases were successfully agreed in mediation in England and Wales.

But despite its successes, there are still certain common misconceptions relating to mediation, as recently published research by the Ministry of Justice makes clear.

And these misconceptions can deter people from using mediation, thereby missing out on one of the best ways to resolve family disputes without resorting to lengthy, expensive and stressful contested court proceedings.

Call for Evidence on Dispute Resolution

In August last year the Ministry of Justice published a Call for Evidence on Dispute Resolution in England and Wales, seeking evidence from interested parties on how well all methods of resolving disputes outside of court, including mediation, were working.

A total of 193 responses to the Call for Evidence were received. Of these, the majority of respondents were dispute resolution providers, representative bodies, legal practitioners, and academics.

The responses indicated that there are a number of issues with mediation, including that many people are not aware that it is available to deal with their dispute, that many were confused over the role of the mediator, and that many were concerned about the cost involved.

The Call for Evidence covered dispute resolution across all civil courts, not just family courts. But as far as family matters are concerned, mediation is available to deal with all types of disputes, in particular disputes over arrangements for children and over finances on divorce.

As to the role of the mediator, some people seemed to think that they could provide legal advice, or that they could impose a settlement upon the parties, just like a judge. Neither of these things are true: a mediator cannot provide legal advice, and settlements are only reached in mediation by the parties reaching agreement – the mediator’s job is to help them to reach that agreement.

Similarly, some people were worried about the mediator’s impartiality and independence, but mediators will specifically not take sides, or show any form of bias.

And as to the cost of mediation, the parties will be informed of the mediator’s charges in advance, and legal aid may be available to cover the cost, subject to eligibility. The government has also been operating limited-time voucher schemes, to help with the cost of mediation.

Misconceptions about mediation

The Call for Evidence also highlighted three other common misconceptions about mediation.

Firstly, respondents claimed that for many people mediation is seen as merely a ‘hurdle to jump’ before applying to court. It is true that unless they are exempted anyone wishing to apply to the court about a family matter must first attend a Mediation Information and Assessment Meeting, where the suitability of the case for mediation will be assessed. However, there is no compulsion to actually go through mediation.

Secondly, respondents said that many people considered using dispute resolution to reach a settlement without a court ‘battle’ to be a form of ‘capitulation’, signalling admission or weakness. This is absolutely not true. Agreeing to go through mediation is not in any way a sign of weakness, and it certainly does not weaken anyone’s case. The idea that anyone needs to ‘have their day in court’ should be avoided.

Lastly, in relation to family mediation respondents said that there was a misconception that its purpose is to attempt to put marriages or relationships back together. This is most definitely not the purpose of mediation. It has nothing to do with marriage guidance, relationship counselling, or helping the parties to reconcile. Mediation takes place after it is clear that there will be no reconciliation, and its purpose is to help the parties agree arrangements for the future, after they have separated.

If you want further details about mediation, we offer a full solicitor-led Family Mediation Service.