WASTED ENERGY: HOW MEDIATION CAN CUT COSTS AND CONFLICT IN DIVORCE 

Published on 24 January, 2025 | Sarah Manning

It is a fact that although divorce is one of life’s singular events, it still has a sense of duality – marking the end of what might have been a long relationship and the beginning of new lives for the individuals involved.

From the perspective of a family lawyer like myself, it is important to ensure that the first of those is dealt with as quickly and with as little difficulty as possible in order to provide the best prospects for the second.

Sadly, it is not always possible.

One such example of the problems which can arise has appeared in media coverage within recent days.

A High Court judgement set out the financial terms following the end of green energy entrepreneur Dale Vince’s second marriage (https://www.bailii.org/ew/cases/EWFC/HCJ/2024/389.html).

Even though the settlement will see him pay Kate Vince a total of £43.5 million, Mr Vince said the size of the award was “a total vindication” (https://www.thetimes.com/article/fff75800-f6a8-4b09-bacf-0be4409234c1?shareToken=72a7a31858183c15f4600194a25c6c2d).

He explained how Mrs Vince had been offered an even larger sum at the start of their four-year divorce process – a process which he claimed had “wasted” their time and that of the court as well as racking up legal fees of roughly £6 million.

The details of the ruling set out wealth beyond the means of most people but, I would suggest, should act as an important lesson for many other couples.

It is also particularly timely, given that it was published only days before the start of Family Mediation Week, an event of which I am privileged to be the chair.

The Vince case demonstrates just how long, how expensive and how strained divorce can become for participants.

That contrasts sharply with what individuals such as Sir Andrew McFarlane, the President of the Family Division of the High Court, have described as mediation’s “proven track-record” in resolving disputes in a constructive manner (https://www.judiciary.uk/speech-by-the-president-of-the-family-division-relaunching-family-mediation/).

It is true that mediation is not suitable for every set of circumstances, especially in relationships which present issues like domestic abuse.

Yet, as guidance provided to courts last September highlighted, it is successful in more than two-thirds of cases (https://www.judiciary.uk/wp-content/uploads/2024/09/Guide-to-Family-Mediation-for-the-Courts-2024.pdf).

That same document underlined one of mediation’s benefits; namely, that “it leaves the decision-making in the hands of the participants” with outcomes that are sustainable.

“Court proceedings”, it continued, “are unlikely to assist with communication” and, it should be noted, are bound by family laws which are by their very nature discretionary.

Equally, lengthy exchanges of correspondence are not necessarily conducive to the kind of clear discussions which are a common part of mediation and other forms of family dispute resolution.

In addition to being capable of assisting with a variety of issues, mediation is applicable across a broad range of financial values, including sums as large as those enjoyed by Mr and Mrs Vince.

I have handled hundreds of family law mediations since I trained as a mediator in 2011, many of which have featured assets totalling millions of pounds.

One variant – hybrid mediation – is particularly effective, combining the direct input of traditional mediation with such additional specialist input as is required to bring about conclusion which is favourable to those involved.

Figures published by the Ministry of Justice have reinforced the growing popularity of dispute resolution methods (https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-july-to-september-2024/legal-aid-statistics-england-and-wales-bulletin-jul-to-sep-2024).

The number of couples using mediation is likely to increase still further.

Recent data revealed that family courts in England and Wales were confronted with more than 260,000 new cases during 2023 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2024/family-court-statistics-quarterly-july-to-september-2024).

Partly as a result, new rules came into effect last April not only obliging separating couples who disagree about how best to care for their children or divide their assets to actively consider mediation at every stage of their cases but halting proceedings and even potentially imposing costs penalties on those who do not take it seriously (https://www.legislation.gov.uk/uksi/2023/1324/contents/made).

The purpose is certainly not to coerce couples into reaching a settlement – after all, one of the central principles of mediation is that participation should be voluntary.

Instead, the aim is to help families move forward without the kind of delay, acrimony or expense which Dale Vince and others experienced.

If together, couples, courts and mediators can achieve that, I believe that there are few who would not regard that as progress of which we can all be proud.