Publish date

21 January 2022

Keeping divorce out of court: the increasing popularity of mediation

Joanna Pratt recently wrote a piece for Edward Fennell’s Legal Diary

Over recent years, family mediation has become an ever more popular forum for couples to resolve issues following the breakdown of relationships.

Mediation is a process whereby individuals openly discuss issues and disagreements with the guidance and assistance of a trained mediator. The role of the mediator is to act impartially, and to facilitate a dialogue between the individuals, and assist them in reaching a consensus. Mediation is not marriage guidance or couples counselling.

Resolving family disputes through the court system has become more and more challenging over recent years. Many courts have been closed. The court service largely operates centralised telephone systems, and it is increasingly hard to speak to a member of the court service if there are queries with regard to a court case.

The pandemic has exacerbated the delays which were already being experienced within the court system. Judges are working as hard, if not harder, than ever, but there are simply not enough courts and judges to progress all cases as proactively as they should be.

Another advantage of mediation is that if couples are able to reach their own agreement with regard to financial issues and the arrangements for any children, it can only help their longer term, ongoing relationship – particularly if they are co-parenting their children.

Mediation is increasingly the preferred forum to resolve issues.

Most separating couples who have children recognise that as co-parents, they are the best people to make decisions about their children’s future lives. As well as conventional mediation, some mediators are qualified to meet the children themselves. Having had an initial meeting with the parents, the mediator will then have a meeting with the children without either parent being present.

After meeting with the children, the mediator will report back to the parents any points which the children have been specifically agreed can be relayed to their parents. The children are not asked to decide what will happen, but are simply told that their parents want to know how the children feel about the current situation, and any suggestions the children have with regard to future arrangements.

Since there are no immediate signs of the delays in the court system improving, it seems likely that the popularity of mediation, and other alternative dispute resolution forums such as collaborative law, will continue to increase.

This article originally appeared in Edward Fennell’s Legal Diary.

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