The Middle Ground: Mediation And Divorce 

Published on 22 July, 2021 | Judith Klyne

It is something of a myth that all divorces are acrimonious.

Whilst print, broadcast and even social media play their respective parts in reporting notable cases, coverage of the more contentious disputes has the potential to distort perceptions of what the process is actually like for the vast majority of couples.

It’s a fact that divorce is a regular feature of modern life.

It’s also true that divorce numbers have been falling in recent years. The most recent figures published by the Office for National Statistics (ONS) show that there were 108,421 divorces in 2019, one-third fewer than the highest ever total in 1993 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2019).

Nevertheless, divorce is proportionately more common. One-third of all those individuals who married in 1973 – the year when the Matrimonial Causes Act was approved by parliament – had split before celebrating their silver wedding anniversary.

However, 42 per cent of couples who wed in 1992 had divorced before reaching the same milestone.

Not all of those divorces will have involved spouses who disagree so completely when it comes to determining how to divide their assets or look after any children that they feel a courtroom is the only way to resolve their differences.

That is one reason why an increasing number of people are opting to take an alternative route.

Another has become increasingly clear since the start of lockdown last year. Since then, family courts have found themselves dealing with as much work as normal but – during the most restrictive phase of lockdown – with greatly reduced capacity.

As a result, the time taken to deal with divorces and childcare matters has lengthened.

Only last month, the Ministry of Justice spelt out how the average time taken to obtain both the decrees nisi and absolute for divorces in England and Wales is now 51 weeks (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2021/family-court-statistics-quarterly-january-to-march-2021#divorce).

The delays and the numerous hearings which are required can not only add tension to an already naturally delicate process but significant financial cost too.

As my colleague Emma Dewhurst told the Sunday Times earlier this month (https://www.thetimes.co.uk/article/281c345a-db55-11eb-9988-ad45b1fbe7e6?shareToken=aa6d19746bce0c316f692bfd8a888485), more couples have been choosing to pay for something known as arbitration to settle their differences.

It’s quicker, more convenient and less intimidating than court but still produces an outcome which is legally binding.

Although arbitration in family law cases has been available for almost a decade, more than one-third of all matters dealt with in this way have been since January last year.

Even so, there are many couples who may find that it’s still not suitable for them.

In particular, there are many husbands and wives whose split is relatively amicable but who may find themselves unable to agree on a few particular points.

They can instead choose mediation, a process which involves them sitting down with an independent mediator who will guide them in their efforts to reach agreement.

Unlike an arbitrator, a mediator doesn’t provide advice on a conclusion but instead guides separating the spouses involved in order to facilitate effective discussions and ensure that whatever solution they arrive at is workable, both on a legal and practical basis.

Regardless of whether a spouse is insistent on going to court or not, mediation is still a factor.

So keen have successive governments been to reduce the strain on families and the judicial system that before being able to make a court application, couples are required to attend a Mediation Information Assessment Meeting (MIAM) – a short, introductory session designed to explain the benefits of mediation.

For some, the MIAM can simply represent a box-ticking exercise – a necessary hurdle to be cleared if they want to have their day in court.

Many others, though, ultimately recognise that mediation allows a very personal form of resolution and decide that there’s no need for court.

After all, it is the participants – not a judge or lawyers – who determine the issues which need to be explored and how that might successfully be done. In that sense, they drive the mediation process.

Whilst there isn’t a national digest of private mediations, the growing appeal of mediation is reflected in the data available for those matters which qualify for Legal Aid funding.

Between January and March this year, the number of couples starting mediation was up by one-third with the number of completed processes or ‘outcomes’ increasing by almost one-fifth (https://www.gov.uk/government/statistics/legal-aid-statistics-january-to-march-2021/legal-aid-statistics-england-and-wales-bulletin-jan-to-mar-2021).

Furthermore, 62 per cent of all those couples who talked over their differences in mediation reached a successful agreement.

As well as being really quite empowering for those involved, mediation can limit the financial and emotional cost of divorce, something which often compounds the distress of a marriage ending.

In that sense, mediation mirrors the Hall Brown approach to divorce.

We tailor the process to what the client needs. If individuals want to take advantage of mediation, arbitration, collaborative law or have issues which can only be resolved in court, we will be guided by them and can offer all of those very specialist services.

After all, divorce can and should be as individual as the people going through it. Having a say in how it is done can make a significant and very positive impact on their lives once it is over.