subject: Mediation, alternative dispute resolution, divorce proceedings and low cost alternatives [print this page] Mediation, alternative dispute resolution, divorce proceedings and low cost alternatives
Introduction
With the forthcoming implementation of new family proceedings rules the overhaul also include one other aspect: mediation.
Mediation is one of the alternative dispute resolution (ADR) process; the others being negotiations, arbitration, and collaborative.
From 6th April divorcing couples would be encouraged to use alternative to going to court and required to undergo a compulsory mediation session and if the couples insist on litigating they will be required to produce evidence of their mediation session before the court accepts the case.
It is envisaged that in most of the cases the mediation may be appropriate but at the same time where the mediation may not be appropriate and the mediation may merely create more animosity leading to long drawn out legal battle. For example, the rules do acknowledge that in cases involving domestic violence or child protection the mediation cannot work and therefore in these cases the evidence of mediation would not be expected.
It is being claimed by the Justice Minister Jonathan Djanogly that mediation was "a quicker, cheaper and more amicable alternative" to the over-worked family courts. However, Sir Mark Potter, the former president of the Family Division, in a BBC interview examines the impact of a curtailment of legal aid for divorce cases and the "practical difficulties".
So we have to wait and see what the government expects and what happens in practice and only time will tell.
So what is mediation?
Mediation can be defined as a process in which an impartial third person assists those involved in dispute to communicate with each other and to reach their own agreed and informal decision about some or all of the issues arising out of the dispute.
The mediator can talk to both parties separately and attempt to also talk to them together, ask questions that help them to understand differences, assist them to understand the issues, options for reaching a settlement.
Mediation is an alternative to court proceedings and in the court proceedings it is the trial judge making the decision.
It is imperative to clearly understand what mediation is and distinguish it from other concepts that are employed in dispute resolutions between parties, that is:
a. Mediation is not reconciliation.
Reconciliation is to bring the parties together. The aim of mediation is not to bring the parties together but the process of mediation may lead the parties to reconsider their position and focus on the issues that had led the breakdown of relationship and as such there exists possibility of reconciliation.
b. Mediation is not Arbitration
Arbitration is where the parties have referred the dispute to a third party (arbitrator) to reach an equitable decision. In mediation the mediator does not make a decision but merely assist the parties to reach a settlement.
c. Mediation is not conciliation
Conciliation according to Oxford English dictionary is "to gain goodwill by acts which induce friendly feeling". It a process where the one of the party concedes on one issue as a goodwill gesture thus leading the other party to do so in the hope of reaching a settlement. It is very one of the tools, and quite effective, that the mediator employs during the process of mediation.
d. Mediation is not Collaborative
Collaborative form of dispute resolution is the newest form of dispute resolution and is being pushed as an alternative to litigation whereas it is merely another step of formalized part of the litigation and court systems it is litigant variant that happens to rely on attitude and process of ADR.
In collaborative divorce each party has a legal representative, trained in the process, and mutually agreed experts who facilitates the resolution process within specifically defined terms, lawyers are not neutral. It is being advocated that Collaborative divorce is cheaper than going to court, perhaps it is but it could turn out to be another layer of costs in the final bill of solicitor's costs if it fails to achieve the desired settlement.
Conclusion
Having considered the various forms and mediation in settlement of dispute context I as always would advise that however sad the fact may is that the marriage is ending in divorce the actual process of separating and divorcing is simple straightforward for the couple to complete the task themselves, without solicitors costs, for a little over 400 in Court fees. And of course, if you do require professional help there are low cost alternative to solicitor's costs. In conclusion as I always stress the point that there is no better solution but to amicably settle the differences, come to an agreement in the interest and welfare of children and the costs saved could be better expended on other important costs of rebuilding life and two households.
