While mediation is proven an effective way of resolving disputes, there is some uncertainty over whether this trend continues within the Family Law sector. Generally, the parties in a divorce dispute will have some sort of 'bad blood' or hostility between them, making compromises much harder to reach. Where parties are emotionally invested in their relationship with the other party, is a compromise reacheable or should we leave these disputes to the courts?
The fault aspect of divorce
Successful family mediation reduces the time divorce proceedings take, making it much more effective than litigation. In 2013 there were a total of 114,720 divorces in England and Wales. [1] Thus, delays in court proceedings for family divorce cases are long and tedious. This causes further stress on familial relationships, impacting the divorcing couple and any dependants they have. Mediation is much more efficient, with fewer delays. A successful mediation hugely reduces the wait time and therefore the stress caused by divorce.
However, the UK in particular does not allow quick settlements through mediation due to its lack of a no-fault divorce system. This breeds animosity between couples who must pick one out of five reasons to start divorce proceedings. The reason will apportion blame to the other party for why they have caused the marriage to break down 'irretrievably'.[2] The other party is highly unlikely to admit fault due to the impact on their reputation as well as the cost impacts of this; the party at fault pays the court fees and the divorce fee (£593). [3]
Therefore, the requirement for parties to undertake mediation prior to divorce is futile in the UK as it is highly unlikely to be successful. This is a stark contrast to the no-fault divorce system that Sweden operates, which allows for successful mediation as parties can divorce without apportioning blame. [4] The UK is set to follow their footsteps and enforce a no-fault divorce system in 2022 under the Divorce, Dissolution and Separation Act 2020 which may resolve some of these issues. [5]
Power imbalance and disclosure
One party in the divorce may be the 'breadwinner' and more financially stable than the other. As a result, they have the advantage in any legal situation. The US family mediation has no duty of disclosure in relation to financial information. Under such circumstances, the advantaged party could be benefiting further. This is because they could hide assets from the weaker party when resolving the dispute through mediation. [6] The resulting agreement would then be unfair. It is much more advantageous for a weaker party to insist on going to litigation but risk the burden of additional costs. That way, they will ensure that the advantaged party have laid all their cards on the table. Currently, litigation in the US ensures the best settlement for the weaker party in divorce proceedings, thus making mediation ineffective.
However, in the UK, disclosure is an ongoing duty which would make hiding assets a form of perjury (misleading or lying to the court). [7] This means that if the advantaged party were to hide assets, they could risk severe consequences. Therefore, UK mediation is fairer for both parties and may be a more cost-efficient option.
Child arrangements
Similarly, mediation is often ineffective over issues concerning the couple's children in the dispute. Parents are very unlikely to give up their rights towards their child so mediation may be a pointless feat, resulting in wasted time and funds. Litigation is more likely to be successful in reaching a conclusion that best benefits the child, as in one-third of the cases neither of the parents will compromise and settle their child-related issues. [8]
However, in English mediation, the mediator will make it clear that both parties must consider the needs of their child, and if the child consents, they may make their own stance clear. [9] However, some countries favour one parent over the other in relation to custody disputes. For instance, customary Nigerian law favours the father, making it very unlikely for a mother to gain custody. [10] This is so even where a mother files for divorce based on domestic violence. [11] Mediation would be ineffective here as the customary law of the country advantages the father in any case, allowing him custody of his children without considering the circumstances on a case-by-case basis.
Other countries have a balancing act and remain gender-neutral in the assignment of custody rights. Sweden is very strict on this where custody remains joint unless the case goes to court. [12] This would remove some of the friction from the mediation room, as the parties will not discuss child custody but only their preferred method of balancing custody. This, consequently, removes the need for litigation as both parents have automatic rights, unless one party feels very strongly that they should have full custody, in which case litigation may be pursued.
Thoughts
Clearly, there are many issues with mediation in Family Law across the globe, with countries standing at all ranges of the spectrum in terms of its effectiveness. The UK lies somewhere towards the centre due to the liberal views on child arrangements, but there is still room for improvement, i.e., for divorce. The issues are vividly highlighted when we look at the laid-back approach of the Swedish courts, by which mediation is set up to be effective and amicable.
Endnotes
[1] McLaren E, 'Divorces in England and Wales 2013' (Office For National Statistics, 2015) accessed 12th September 2021.
[2] Matrimonial Causes Act 1973, S1(2).
[3] Gov.uk, 'Get a Divorce' (Crown Copyright, 2021) accessed 10th October 2021.
[4] The Law Office of Jeremy D. Morley, 'Sweden Divorce Requirements' (International Divorce, 2021) accessed 10th October 2021.
[5] Divorce, Dissolution and Separation Act 2020, S1.
[6] Alternative Divorce Solutions, 7 Reasons Why Divorce Mediation Isn’t The Popular Choice (Alternative Divorce Solutions, 2016) https://www.altdivorcesolutions.com/blog/2016/april/7-reasons-why-divorce-mediation-isnt-the-popular/ accessed 10th September 2021.
[7] Lloyd Platt & Co, 'Hiding money during a divorce' (Lloyd Platt & Co, ND) accessed 10th September 2021.
[8] Cleak H, Schofield M, Bickerdike A, Efficacy of Family Mediation and The Role Of Family Violence: Study Protocol (BMC Public Health, 2014) accessed 14th September 2021.
[9] Family Mediation Council, 'General Principles for Mediators and Mediation' (Family Mediation Council, 2021) accessed 11th September 2021.
[10] Ntoimo L, 'Customary Law in Nigeria Favours Men over Children in Custody Cases' (The Conversation, 2021) accessed 13th September 2021.
[11] Aderinto A and Others, Domestic Violence Against Women in Nigeria: An Investigation in Delta and Edo States (Ibadan Journal of Social Sciences, Vol 4, issue 1, 2006) 67.
[12] Olsson G, 'Family Law in Sweden: Overview' (Thomson Reuters, 2020) accessed 10th September 2021.